Divorce is an emotional process that might not be limited to just the legal end to a marriage. Sometimes a child or children are involved in the proceedings. Sometimes heated, child custody and visitation must be addressed during the divorce procedure. This is not automatically a part of the divorce process. After a Petition for Divorce is filed and the court proceeds with the case, a Petition for Custody must be filed separately with family court. Once filed, the petition will serve an injunction on both parties. They may not permanently remove the child from Delaware while the proceedings are pending without permission of the other parent. Both parents and child are ordered to take a Parent Education Class.
The most important consideration for the court is the child’s best interest. When appropriate, frequent and continuing access to the child is said to have the most positive impact, serving the best interests of the child. Shared custody, or joint custody, is preferred when appropriate, but sometimes, sole custody, or one parent with physical and legal custody, is in the child’s best interest. Sole custody may sometimes involve the visitation rights of the other parent, depending on the circumstances. In Delaware, whether joint or sole custody is awarded, both parents have the right to receive all materials concerning the treatment and well-being of the child. This may include the child’s progress is school, school activities and conferences, medical treatment, religious events, and any other activities. Both parents also have the right to contact the child by phone or mail. If the court finds any of this detrimental to the child’s wellbeing, it may restrict the access based on the circumstances documented.
When a Petition for Custody is served successfully, Delaware court will recommend the case go to mediation unless there has been a finding of domestic violence or no contact order is in effect. If this is the situation, the court will hear the case unless the petitioner’s attorney requests mediation. The court or mediator will take many factors into consideration, first being the child’s best interest, sometimes including the child’s wishes and preference. The court will only consider the impact to the child/ parent relationship. Some considerations related to the parents may include and are not limited to:
- Any history of domestic violence
- Criminal activity
- The mental and physical health of each parent
- History of parental roles and responsibilities
Again, the child’s best interest is the first and most important factor in the case. The court will want to limit the disruption to the child’s education, home life, and community life. The court prefers to limit the disruption to positive relationships with other siblings, relatives, role models, or anyone else important to the child. As stated before, frequent and consistent access by each parent is usually in the best interest of the child. Delaware Courts have the authority to make a temporary order, for no longer than 6 months, for parents to show the willingness and capacity to cooperate in a joint custody agreement. The Court also has the authority to order counseling for both parents and child to assist in lone parenting and co-parenting skills. The final judgment will include a schedule for parent visitation. Speak with an attorney at Mattleman, Weinroth & Miller, P.C. in order to receive the best outcome to your legal matter.