How Do I Modify Child Cusotdy in Delaware?
Full Question:
Answer:
It isn't a child's choice to decide custody and visitation, it must be ordered by the court to be enforceable. A court may grant a motion for a modification of a divorce decree when the parties consent to the modification or when a significant change of circumstances justifies the modification. Certain aspects of the decree are modifiable, while others are not. The property division is not modifiable by the court. It is final. Child support may be modified if there is a significant change of circumstances. A significant change of circumstances may include, among others, a substantial increase or decrease in income, emancipation of a child, or contribution to expenses by another due to cohabitation or remarriage. The court's decision to grant a modification is based on the best interests of the child. A motion and petition are generally the same thing, they are formals requests to the court for something. If granted, the court will issue an order. When the order is made, the requests in the motion/petition become enforceable.
The following are DE statutes:
13 Del. C. § 730. Petition to Modify Custody.
A party seeking to modify a custody order shall file a verified petition
setting forth facts supporting the requested modification.
13 Del. C. § 1519. Modification or termination of decree or order;
termination of alimony; enforcement of alimony order.
(a) A decree or separate order entered under § 1518 of this title may
be modified or terminated only as follows:
(1) Support for a child, only as provided in Chapter 5 of this title, or
otherwise;
(2) Custody and/or visitation of a child, only as provided in Chapter 7
of this title, or otherwise;
(3) Property disposition, only upon a showing of circumstances that would
justify the opening or vacation of a judgment under the Rules of the
Superior Court of this State;
(4) Alimony or any other relief awarded, only upon a showing of real
and substantial change of circumstances.
(b) Unless otherwise agreed by the parties in writing and expressly
provided in the decree, the obligation to pay future alimony is terminated
upon the death of either party or the remarriage of the party receiving
alimony.
(c) Any alimony order entered pursuant to § 1512 of this title shall be
enforced in this State exclusively by the Family Court in the county
wherein the respondent resides or is found, or in the county where
petitioner resides if respondent does not reside and cannot be found in
this State, regardless of whether such petitioner was the petitioner or
the respondent in the divorce action, and such Family Court, on proper
showing of either of such petitioner or such respondent or on its own
motion, may modify or terminate support obligations formerly decreed by
the Superior Court.
13 Del. C. § 729. Modification of prior orders.
(a) An order concerning visitation may be modified at any time if the
best interests of the child would be served thereby in accordance with the
standards set forth in § 728(a) of this title.
(b) An order entered by the Court by consent of all parties, an interim
order or a written agreement between the parties concerning the legal
custody of a child or his or her residence may be modified at any time by
the Court in accordance with the standards set forth in § 722 of this
title.
(c) An order entered by the Court after a full hearing on the merits
concerning the legal custody of a child or his or her primary residence may
be modified only as follows:
(1) If the application for modification is filed within 2 years after the
Court's most recent order concerning these matters, the Court shall not
modify its prior order unless it finds, after a hearing, that continuing
enforcement of the prior order may endanger the child's physical health or
significantly impair his or her emotional development.
(2) If the application for modification is filed more than 2 years
after the Court's most recent order concerning these matters, the Court
may modify its prior order after considering:
a. Whether any harm is likely to be caused to the child by a
modification of its prior order, and, if so, whether that harm is likely
to be outweighed by the advantages, if any, to the child of such a
modification;
b. The compliance of each parent with prior orders of the Court
concerning custody and visitation and compliance with his or her duties and
responsibilities under § 727 of this title including whether either parent
has been subjected to sanctions by the Court under § 728(b) of this
title since the prior order was entered; and
c. The factors set forth in § 722 of this title.
13 Del. C. § 728. Residence; visitation; sanctions.
(a) The Court shall determine, whether the parents have joint legal
custody of the child or one of them has sole legal custody of the child,
with which parent the child shall primarily reside and a schedule of
visitation with the other parent, consistent with the child's best
interests and maturity, which is designed to permit and encourage the child
to have frequent and meaningful contact with both parents unless the Court
finds, after a hearing, that contact of the child with 1 parent would
endanger the child's physical health or significantly impair his or her
emotional development. The Court shall specifically state in any order
denying or restricting a parent's access to a child the facts and
conclusions in support of such a denial or restriction.
(b) The Court shall encourage all parents and other persons to foster
the exercise of a parent's joint or sole custodial authority and the
maintenance of frequent and meaningful contact, in person, by mail and by
telephone, between parents and children unless an order has been entered
pursuant to subsection (a) of this section denying or restricting such
contact. If the Court finds, after a hearing, that a parent has violated,
interfered with, impaired or impeded the rights of a parent or a child
with respect to the exercise of joint or sole custodial authority,
residence, visitation or other contact with the child, the Court shall
order such person to pay the costs and reasonable counsel fees of the
parent applying for relief under this section. The Court shall also
impose 1 or more of the following remedies or sanctions:
(1) Extra visitation with the child to enable the child to make up any
wrongfully denied visitation with a parent;
(2) A temporary transfer of custody or primary residence or both of the
child to a parent applying for relief under this section for up to 30
days without regard to the factors set forth in § 729 of this title;
(3) A surcharge to be assessed against the parent with rights of
visitation with the child or children for his or her unilateral failure,
without just cause and/or without sufficient notice, to comply with the
visitation schedule. Failure to comply consists of more than minimal
violations, such as, but not limited to, slight alterations in the times
for visitation. The amount of the surcharge shall be up to 10 percent of
the visiting parent's monthly child support obligation for each violation
and shall be payable to the parent with whom the child or children
reside(s);
(4) A fine in the discretion of the Court; or
(5) A term of imprisonment if a person is found to be in contempt of
prior orders of the Court.
In addition, the Court may impose such other sanctions or remedies as the
Court deems just and proper to ensure the maintenance in the future of
frequent and meaningful contact between parent and child and participation
by both parents in the child's upbringing if the parents have joint legal
custody.
(c) A parent of a child who believes it to be in the best interests
of a child for the custodial authority, visitation or communication
between a parent and a child as established by a prior Court order
or written agreement of the parties to be modified may apply to
the Court for such modification, and the Court may grant such an
application if it finds after application of the standards set forth in
subsection (a) of this section that the best interests of the child would
be served by ordering such a modification. The filing of an application
under this subsection by any person shall not be a defense in an action
brought against any person under subsection (b) of this section unless
the Court has entered an appropriate order allowing such conduct prior to
the occurrence of the conduct complained of in the action brought under
subsection (b).
(d) Before entering an Order for visitation to be conducted in a
correctional facility the Court shall in addition to other relevant factors
consider the following:
1. The parent seeking visitation in a correctional facility had a
substantial and positive relationship with the child prior to
incarceration;
2. The nature of the offense for which the parent seeking visitation is
incarcerated;
3. Whether the victim of the offense is the child, a sibling of the
child, stepsibling, half sibling, parent, stepparent, grandparent,
guardian or custodian of the child; and,
4. Whether the child seeks a relationship with the incarcerated parent.
(e) The Court shall not enter an order requiring visitation in a
correctional facility if the person incarcerated is a sex offender
unless the requirements of Subchapter II of Chapter 7A of this
Title are met.
(f) The Court shall not enter an order requiring visitation in a
correctional facility if the person incarcerated has been adjudicated of
committing murder in the first or second degrees.