Copyright © Gary R. Spritz, Esquire, Delaware Divorce and Family Law. All rights reserved.
Delaware Family Court Child Custody Orders and Visitation Orders are modifiable. However, whether as a practical matter yours can be modified will depend your child’s situation. First, to say this is difficult emotionally on you is an understatement. However, this is even more difficult on your child and child custody battles can scar them so what you do I, you should confident about your belief that it is what is best for your child. Your first question should be what is best for your child?
Your second question is when was your custody order signed? Was it after a trial or did it arise by an agreement whether at a mediation.
The reason for this question is the standard Delaware Family Court’s apply to determine whether to modify a custody order (and not a visitation order) depend on when there was last a trial. If there was never a trial and the custody order arose by an agreement and not a decision by a Judge, the court applies to see what is in the best interests of the child (set forth below) and there is no hurdle for you to legally cross. Although if you complain to a Judge about a situation that existed prior to the entry of the present custody order agreed to, the Judge will be skeptical as to how important the situation was considering your agreement. However, if the custody order was decided after a trial and is less than 2 years before, the court will not modify the custody order unless you can show that continuing the old order may endanger the child’s physical health or significantly impair the child’s emotional development. THIS IS A HIGH BARRIER TO OVERCOME. For example, the child’s desire may not be enough to meet this burden alone. However, it is more than two years after the custody trial, the court does a balancing test to determine if the harm of modifying the order to the child is outweighed by the advantages to modifying the order and look at your compliance with your duties as a parent and prior orders.
However, if you are seeking to modify a visitation order, the standard that the court’s apply is what visitation is in the best interest of the child as set in 13 Del. C. Sec. 722(a). This is known as the “best interests” test and there are 8 factors as follows:
1. The wishes of the child’s parents.
2. The wishes of the child.
3. The relationships of the child with parents, grandparents, siblings and persons living with the parent and others who significant affect the child.
4. How the child adjusted to home school and or community.
5. The mental and physical health of all involved.
6. Evidence of domestic violence;
7. Criminal history of the party.Now in any case some of these factors play a larger role than others and whether you are seeking to modify a visitation order or custody order, call me at (302) 655-0900 or email me at firstname.lastname@example.org or use the form below