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CUSTODY MODIFICATION OVERVIEW

A Custody Order may be modified in certain circumstances.

  • There IS a Custody Order in place in Delaware.  AND
  • You want to change the terms of the current order; AND
  • The child, a parent or a person acting as a parent continues to reside in Delaware.  (There are exceptions to this requirement.  If none of the above people live in Delaware, talk to an attorney to see if an exception applies to your situation).

                                  --OR—

  • There IS a Custody Order in place from a state other than Delaware.  AND
  • You want to change the terms of the current order; AND
  • The child has been living in Delaware for AT LEAST 6 CONSECUTIVE MONTHS BEFORE filing the Motion and Affidavit to Modify Custody.  (There are exceptions to this 6 month requirement.  If the child has not lived in Delaware for at least 6 months talk to an attorney to see if an exception applies to your situation.  If you are unable to retain an attorney, please refer to the Delaware Code, Title 13, Chapter 19); AND
  • The Court that issued the Custody Order has given up jurisdiction (you need to contact that Court to find out how this is done). 

You may only file to change custody if a custody order has already been issued by the Court.  If you have not been to the Court before regarding custody, please see the Custody Instruction Pages.

  • A custody order can only be modified in certain situations.        
    • If the original custody order that you want to change is a consent order (you and the Respondent(s) agreed to the custody arrangement), then it can be modified anytime the Court finds that it is in the “best interest” of the child.
    • If the original custody order was entered by the Court after a full hearing AND it has been less than two years since it was entered, the order can be changed only if the Court finds that continuing to enforce the order would endanger the child’s physical health or significantly impair the child’s emotional development. 
    • If the order was entered by the Court after a full hearing AND if has been more than two years since it was entered, the order can be changed only after the Court considers the following factors:
          • Whether any harm caused by changing the order is outweighed by the benefit of changing the order; AND
          • Each parent’s compliance with the prior order; AND
          • The “best interest” of the child.