State Laws and Legislation

Delaware Custody and Visitation Law

Delaware courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the children. There are no published cases dealing with transgender parents. Delaware courts will allow a former same-sex partner (with no legal or biological relationship to the children) to petition for custody and visitation.

Custody and Visitation for Gay, Lesbian and Bisexual Parents
Delaware courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the children.

Delaware law states: “The court shall determine the legal custody and residential arrangements for a child in accordance with the best interests of the child. In determining the best interests of the child, the court shall consider all relevant factors, including: (1) The wishes of the child’s parent or parents as to his or her custody and residential arrangements; (2) The wishes of the child as to his or her custodian(s) and residential arrangements; (3) The interaction and interrelationship of the child with his or her parents, grandparents, siblings, persons cohabiting in the relationship of husband and wife with a parent of the child, any other residents of the household or persons who may significantly affect the child’s best interests; (4) The child’s adjustment to his or her home, school and community; (5) The mental and physical health of all individuals involved; (6) Past and present compliance by both parents with their rights and responsibilities to their child; … and (7) Evidence of domestic violence. …

“Notice of a child custody proceeding shall be given to the child’s parent, guardian and custodian, who may appear and be heard and may file a responsive pleading. The court may, upon a showing of good cause, permit the intervention of other interested parties. …

“Whether the parents have joint legal custody or one parent has sole legal custody of a child, each parent has the right to receive, on request, from the other parent, whenever practicable in advance, all material information concerning the child’s progress in school, medical treatment, significant developments in the child’s life and school activities and conferences, special religious events and other activities in which parents may wish to participate and each parent and child has a right to reasonable access to the other by telephone or mail. The court shall not restrict the rights of a child or a parent under this subsection unless it finds, after a hearing, that the exercise of such rights would endanger a child’s physical health or significantly impair his or her emotional development. …

“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 one 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.”

In one 1999 case, Santiago J. v. Pamela J., the father, a gay man, had restrictions placed on his visitation schedule — mainly, that the children could not have contact with his partner. The family court reversed this restriction. However, the court ruled, “contact with Mr. P. [the father’s partner] will significantly impair the children’s emotional development, unless there is a successful and appropriate intervention by a trained therapist to facilitate such a process.” As a result, the court ordered that this restriction would apply until a trained therapist devises a plan for contact with Mr. P. and a status report. In the court’s follow-up in 2000, the father withdrew his request that Mr. P be involved in the visits he had with the children. The court found that it would be appropriate for the children to visit their father in Florida, as long as Mr. P was not present. The court based this on the fact that the children were scared that Mr. P would just show up during their visits.

In one 1980 case, Gerald & Margaret D. v. Peggy R., the maternal grandparents petitioned for custody of their daughter’s child. One of the grounds for this petition was the daughter’s sexual orientation. The grandparents were devout Christians, and the court found that they were so firm in their beliefs that if custody was awarded to them, they would prefer to limit the mother’s visitation so that the child would not be exposed to her living arrangements. The court articulated that the standard to be used when there is a custody dispute between parents and a third party is the “best interest” determination, but any third party seeking such custody bears a heavy burden of persuasion. The court concluded that “the mother can provide for the physical and emotional needs of [the child] on a consistent and sustained basis and that the quality of care she has been providing makes it clear that it is in the best interest of [the child] to remain in her mother’s custody.”

Custody and Visitation for Transgender Parents
There are no published cases dealing with transgender parents. State law, however, does not seem to permit the consideration of factors that do not affect the best interests of the child to be used in custody and visitation determinations.

Custody and Visitation for Same-Sex Co-Parents
Delaware courts will allow a former same-sex partner (with no legal or biological relationship to the children) to petition for visitation.

In a 2006 case, Smith v. Smith, the Delaware Supreme Court dismissed an appeal from a same-sex co-parent who was trying to block her former partner from having access to the children. The trial court awarded the couple joint legal custody. Erica then petitioned the court for child support from Sheila. The court granted the petition and Sheila began paying child support. Erica then filed an appeal challenging the court’s finding that Sheila was a parent. The high court dismissed the appeal on the “acceptance of benefits” doctrine, which states that a person who accepts the benefits of a judgment cannot pursue an appeal that may invalidate the rights to those benefits. While this case had the potential to establish a significant precedent for same-sex parents, the ruling neither took away nor affirmed any rights — it left the law unchanged.

In one 2002 case, Chambers v. Chambers, a same-sex couple had made the decision for one partner, Karen, to undergo in vitro fertilization. The other partner, Carol, helped pay for the procedure, which resulted in the birth of David. The relationship ended, at which time Carol petitioned the court for visitation with David. In the petition she referred to herself as “David’s mother” and to David as “her son.” The court accepted the visitation agreement the couple had agreed to. Karen subsequently filed a petition against Carol for the support of David. Carol tried to argue that she was not a “parent” under state law. The court rejected her argument, noting that when she petitioned for visitation, Carol readily called herself “mother” and referred to David as her son and now when she was being asked to help in supporting him she was claiming to not be his parent. The court stated, “Carol’s acts and directives predating conception, while biologically not providing the genetic material necessary to conceive this child, constituted a symbolic act of procreation.”

Citations: DEL. CODE ANN. tit. 13§ 722; DEL. CODE ANN. tit. 13 §721; DEL. CODE ANN. tit. 13 § 727; DEL. CODE ANN. tit. 13 § 728; Smith v. Smith, 2006 Del. LEXIS 113,  (Del. 2006); Santiago J. v. Pamela J., 1999 Del. Fam. Ct. LEXIS 103 (Del. Fam. Ct. 1999); Gerald & Margaret D. v. Peggy R., Del. Fam. Ct. LEXIS (Del. Fam. Ct. 1980).

Updated: Thu, March 09, 2006 - 12:00:20