Best Interests of the Child in Delaware: The 8 Factors Judges Use

Every custody decision in Delaware comes down to one legal standard: the best interests of the child, codified at 13 Del. C. § 722. If you're preparing for mediation or a custody hearing, understanding exactly what judges evaluate — and how they weigh it — is the single most important thing you can do.

The 8 Statutory Factors

Delaware law requires the court to consider all relevant factors, with particular emphasis on these eight:

1. The Wishes of the Parents

Each parent's proposed custody arrangement matters, but it's not a bidding war. Judges evaluate whether a parent's request reflects the child's needs or their own convenience. A parent who proposes a schedule that accommodates the child's school, activities, and friendships signals child-centered thinking.

2. The Wishes of the Child

Delaware courts consider a child's preference, but weight it based on the child's age, maturity, and reasoning capacity. A teenager who articulates specific reasons for preferring one home carries more weight than a young child echoing a parent's talking points. Judges are trained to distinguish genuine preferences from coached responses.

3. The Child's Relationships

The court examines the child's interactions and relationships with both parents, siblings, grandparents, and anyone else who significantly affects the child's well-being. This includes looking at who the child turns to for comfort, who helps with homework, and who attends school events.

4. The Child's Adjustment

How well the child has adjusted to their current home, school, and community weighs heavily. Judges are reluctant to uproot a child who is thriving — stable schooling, established friendships, and community ties all favor maintaining the status quo unless there's a strong reason to change it.

5. Physical and Mental Health

The physical and mental health of all individuals involved — both parents and the child — is evaluated. This doesn't mean that a parent with a managed health condition loses custody. Courts look at whether a health issue affects parenting ability, not whether it exists.

6. Compliance with Parental Responsibilities

This factor examines each parent's track record. Who takes the child to medical appointments? Who communicates with teachers? Who has historically managed day-to-day care? Under 13 Del. C. § 701, both parents are expected to actively participate in their child's upbringing — the court evaluates who actually has.

7. Evidence of Domestic Violence

Any history of domestic violence — physical, psychological, or economic abuse — is treated as a serious factor. An active Protection from Abuse (PFA) order or adjudicated domestic violence history can disqualify a parent from receiving joint custody and mandate supervised visitation.

8. Criminal History

The criminal history of any party or household resident is examined. Convictions related to violence, substance abuse, or offenses against children carry the most weight, but any relevant criminal history can affect the court's assessment.

How Judges Actually Weigh These Factors

Here's what many parents miss: Delaware judges do not use a scorecard. The Delaware Supreme Court's landmark Holmes v. Holmes decision explicitly prohibits a "mechanical" tally-sheet approach. A judge cannot simply count which parent "wins" more factors and award custody based on the total.

Instead, the court evaluates the amalgam of all factors qualitatively. A parent might score poorly on one factor but demonstrate such strength on others that the overall picture still favors them. Conversely, a serious deficiency on a single factor — particularly domestic violence or criminal history — can override advantages elsewhere.

This means your preparation should focus on presenting a complete, honest picture rather than trying to "win" each factor individually.

How to Present Evidence for Each Factor

Document, don't just assert. Telling a judge "I'm the more involved parent" isn't evidence. Bring school communication records, medical appointment histories, extracurricular sign-up sheets, and teacher contact logs.

Show willingness to co-parent. Judges pay close attention to which parent fosters the child's relationship with the other parent. Evidence that you encourage the child's contact with their other parent, share information freely, and avoid disparaging the other parent strengthens your position.

Be honest about weaknesses. Judges see through attempts to hide unfavorable facts. A parent who acknowledges a past issue and demonstrates how they've addressed it earns more credibility than one who pretends the issue doesn't exist.

Use Form 364 strategically. The Custody, Visitation, and Guardianship Disclosure Report (Form 364) is your first opportunity to present your case. Complete it thoroughly — judges and mediators read this document carefully, and vague or evasive responses raise red flags.

The Delaware Child Custody & Parenting Plan Guide includes a best-interest factors worksheet that helps you organize evidence for each of the eight statutory factors before you walk into mediation or court.

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