Chapter 7

§ 701 Rights and responsibilities of parents; guardian appointment. (a) The father and mother are the joint natural guardians of their minor child and are equally charged with the child’s support, care, nurture, welfare and education. Each has equal powers and duties with respect to such child, and neither has any right, or presumption of right or fitness, superior to the right of the other concerning such child’s custody or any other matter affecting the child. If either parent should die, or abandon the family, or is incapable, for any reason, to act as guardian of such child, then, the custody of such child devolves upon the other parent. Where the parents live apart, the Court may award the custody of their minor child to either of them and neither shall benefit from any presumption of being better suited for such award. (b) This section shall not affect the laws of this State relative to the appointment of a guardian of the property of a minor, or the appointment of a third person as a guardian of the person of the minor where the parents are unsuitable or where the child’s interests would be adversely affected by remaining under the natural guardianship of such child’s parents or parent. (c) [Repealed.] 35 Del. Laws, c. 191, §  1 ; Code 1935, §  3576; 13 Del. C. 1953, §  701; 59 Del. Laws, c. 569, §  2 ; 70 Del. Laws, c. 186, §  1 ; 72 Del. Laws, c. 451, §§  2, 3 ; 77 Del. Laws, c. 43, §  12 ; 84 Del. Laws, c. 42, § 1 ; § 702 Duty to support minor child. Repealed by 59 Del. Laws, c. 567, § 2. § 703 Services and earnings of minor child. The father and mother of a minor child are equally entitled to its services and earnings, and if 1 of the parents is dead or has abandoned the child or has been deprived of its custody by court decree the other parent shall be entitled to such services and earnings. 35 Del. Laws, c. 191, §  2 ; Code 1935, §  3577; 13 Del. C. 1953, §  703; § 704 Action for loss of wages or services of minor child. The parents jointly may maintain an action for loss of wages or services of the minor child when such loss is occasioned by injury wrongfully or negligently inflicted upon the child. If either the father or mother is dead or has abandoned the child or has been deprived of its custody by court decree or refuses to sue, the other parent may sue alone. Nothing contained in this section shall be deemed to supersede, limit, modify or affect the workers’ compensation laws of this State. 35 Del. Laws, c. 191, §  3 ; Code 1935, §  3578; 13 Del. C. 1953, §  704; 70 Del. Laws, c. 186, §  1 ; § 707 Consent to health care of minors. (a) Definitions. — As used in this section: (1) “Blood testing” includes Early Periodic Screening, Diagnosis, and Treatment (EPSDT) testing and other blood testing deemed necessary by documented history or symptomatology but excludes HIV/AIDS testing and controlled substance testing or any other testing for which separate court order or informed consent as provided by law is required. (2) “Medical treatment” means developmental screening, mental health screening and treatment, and ordinary and necessary medical and dental examination and treatment, including blood testing, preventive care including ordinary immunizations, tuberculin testing and well-child care. Medical treatment also means the examination and treatment of any laceration, fracture or other traumatic injury, or any symptom, disease or pathology which may, in the judgment of the treating health care professional, if left untreated, reasonably be expected to threaten health or life. (3) “Relative caregiver” or “caregiver” means an adult person, who by blood, marriage or adoption, is the great grandparent, grandparent, step grandparent, great aunt, aunt, great uncle, uncle, stepparent, brother, sister, step brother, step sister, half brother, half sister, niece, nephew, first cousin or first cousin once removed of a minor and with whom the minor resides, but who is not the legal custodian or guardian of the minor. (b) Parties authorized to give consent. — Consent to the performance upon or for any minor by any licensed medical, surgical, dental, psychological or osteopathic practitioner or any nurse practitioner/clinical nurse specialist or any hospital or public clinic or their agents or employees of any lawful medical treatment, and to the furnishing of hospitalization and other reasonably necessary care in connection therewith, may be given by: (1) A parent or guardian of any minor for such minor; (2) A married minor for such minor or, if such married minor be unable to give consent by reason of disability, then by such minor’s spouse; (3) A minor of the age of 18 years or more for such minor; (4) A minor parent for such minor parent’s child; (5) A minor or by any person professing to be serving as temporary custodian of such minor at the request of a parent or guardian of such minor for the examination and treatment of (i) any laceration, fracture or other traumatic injury suffered by such minor, or (ii) any symptom, disease or pathology which may, in the judgment of the attending personnel preparing such treatment, if untreated, reasonably be expected to threaten the health or life of such minor; provided, however, that the consent given shall be effective only after reasonable efforts shall have been made to obtain the consent of the parent or guardian of said minor; or (6) A relative caregiver acting pursuant to an Affidavit of Establishment of Power to Relative Caregivers to Consent to Medical Treatment of Minors. (c) Effect of consent. — Any consent given by or for a minor pursuant to the authority of any provision of this chapter shall be valid and effective for all purposes, and, notwithstanding any misrepresentation as to age, status as parent, guardian or custodian or as to marital status, made to any practitioner, hospital or clinic for purposes of inducing the furnishing of health care to such minor, shall bind such minor, that minor’s parent, spouse, heirs, executors and administrators and shall not be subject to subsequent disaffirmance by reason of minority. (d) Liability of persons responsible for medical care. — Nothing contained in this section shall be construed to relieve any practitioner, hospital, clinic or their agents or employees from liability for negligence in diagnosis, care and treatment or for the performance of any procedure not reasonably required for the preservation of life or health. 13 Del. C. 1953, §  707; 54 Del. Laws, c. 386 ; 58 Del. Laws, c. 272 ; 70 Del. Laws, c. 186, §  1 ; 72 Del. Laws, c. 187, §§  1-5 ; 84 Del. Laws, c. 42, § 1 ; § 708 Affidavit of Establishment of Power to Consent to Medical Treatment of Minors. (a) There is created an Affidavit of Establishment of Power to Relative Caregivers to Consent to Medical Treatment of Minors. The affidavit shall include, at a minimum, the name and date of birth of the minor; a statement signed by the caregiver that the caregiver is 18 years of age or older and that the minor resides with the caregiver; the names and signatures of the parents, legal custodian or guardian of the minor indicating their approval of the caregiver’s power or, if a parent, custodian or guardian of the minor is unavailable, a statement of reasonable effort made by the caregiver to locate the parent, custodian or guardian based on criteria set forth in the regulations; the name of the caregiver; relationship of the caregiver to the minor documented by proof as defined by regulation; and the dated signature of the caregiver. The signature of the caregiver shall be notarized. (b) The affidavit is valid for 1 year unless the minor no longer resides in the caregiver’s home or a parent, custodian or guardian revokes the approval. If a parent, custodian or guardian revokes approval, the caregiver shall notify any health care provider or health service plans with which the minor has been involved through the caregiver. (c) A caregiver must present a completed Affidavit of Establishment of Power to Relative Caregivers to Consent to Medical Treatment of Minor when seeking medical treatment for a minor. (d) The decision of a relative caregiver to consent to or to refuse medical treatment for a minor shall be superseded by a decision of a parent, legal custodian or guardian of the minor. (e) No person who relies in good faith upon a fully executed Affidavit of Establishment of Power to Relative Caregivers to Consent to Medical Treatment of Minors in providing medical treatment shall be subject to criminal or civil liability or to professional disciplinary action because of the reliance. This immunity applies even if medical treatment is provided to a minor in contravention of a decision of a parent, legal custodian or guardian of the minor who signed the affidavit if the person providing care has no actual knowledge of the decision of the parent, or legal custodian or guardian. (f) The decision of a relative caregiver, based upon an Affidavit of Establishment Power to Relative Caregivers to Consent to Medical Treatment of Minors, shall be honored by a health care facility or practitioner unless the health care facility or practitioner has actual knowledge that a parent, legal custodian or guardian of a minor has made a contravening decision to consent to or to refuse medical treatment for the minor. (g) A person who knowingly makes a false statement in an affidavit under this section shall be subject to a civil penalty of $1,000 per child. Justices of the peace shall have jurisdiction of these cases. (h) The Department of Health and Social Services is authorized to promulgate regulations to implement this section. 72 Del. Laws, c. 187, §  7 ; 84 Del. Laws, c. 42, § 1 ; § 709 Consent of a minor to donate blood voluntarily without the necessity of obtaining parental permission or authorization. (a) Anything otherwise provided in the law to the contrary notwithstanding, any person over 17 years old shall be eligible to donate blood in any voluntary and noncompensatory blood program without parental permission or authorization. (b) The consent given by a minor under this section shall, notwithstanding such minority, be valid and legally effective for all purposes and shall be binding upon such minor, such minor’s parents, legal guardians, spouse, heirs, executors and administrators as effectively as if such minor were 18 years of age or over at the time of giving such consent. A minor giving such consent shall be deemed to have the same legal capacity to act and the same legal obligations with regard to giving such consent as if such minor were 18 years of age or over. Consent so given shall not be subject to later disaffirmance by reason of such minority and the consent of no other person or court shall be necessary for performance of the lawful procedures required to be performed in order to receive such donation. (c) Such consent so given by a minor as described above shall be interpreted as a contract permitting penetration of tissue which is necessary to accomplish such donation. 13 Del. C. 1953, §  710; 57 Del. Laws, c. 464 ; 63 Del. Laws, c. 208, §§  1, 2 ; 70 Del. Laws, c. 186, §  1 ; 84 Del. Laws, c. 42, § 1 ; § 710 Minors’ consent to diagnostic and lawful therapeutic procedures relating to care and treatment for pregnancy or contagious diseases. (a) A minor 12 years of age or over who professes to be either pregnant or afflicted with contagious, infectious or communicable diseases within the meaning of Chapters 5 and 7 of Title 16, or who professes to be exposed to the chance of becoming pregnant, may give written consent, except to abortion, to any licensed physician, hospital or public clinic for any diagnostic, preventive, lawful therapeutic procedures, medical or surgical care and treatment, including X rays, by any physician licensed for the practice of medicine or surgery or osteopathic medicine or surgery in this State and by any hospital or public clinic, their qualified employees or agents while acting within the scope of their employment. (b) Consent so given by a minor 12 years of age or over shall, notwithstanding such minority, be valid and legally effective for all purposes, regardless of whether such minor’s profession of pregnancy or contagious disease is subsequently medically confirmed, and shall be binding upon such minor, such minor’s parents, legal guardians, spouse, heirs, executors and administrators as effectively as if the minor were of full legal age at the time of giving of the consent. A minor giving the consent shall be deemed to have the same legal capacity to act and the same legal obligations with regard to giving consent as if the minor were of full legal age. Consent so given shall not be subject to later disaffirmance by reason of such minority; and the consent of no other person or court shall be necessary for the performance of the diagnostic and lawful therapeutic procedures, medical or surgical care and treatment rendered such minor. (c) The physician licensed for the practice of medicine or surgery or hospital to whom such consent shall be given may, in the sole exercise of that physician’s, surgeon’s, or hospital’s discretion, either provide or withhold from the parents or legal guardian or spouse of such minor such information as to diagnosis, therapeutic procedures, care and treatment rendered or to be rendered the minor as such physician, surgeon or hospital deems to be advisable under the circumstances, having primary regard for the interests of the minor. (d) The parents, legal guardian or spouse of a consenting minor shall not be liable for payment for diagnostic and lawful therapeutic procedures performed, medical or surgical care or treatment rendered or hospital confinement pursuant to this section. (e) Notice of intention to perform any operation otherwise permitted under this section shall be given the parents or legal guardian of such minor at their last known address, if available, by telegram sent at time of diagnosis by the surgeon designated to perform such operation; provided, that such operation may proceed forthwith after diagnosis if there is reason to believe that delay would endanger the life of such minor or there is a reasonable probability of irreparable injury. (f) Nothing contained in this section shall be construed to relieve any licensed physician, hospital or public clinic, their agents or employees, from liability for their negligence in the diagnosis, care and treatment rendered such minor. 13 Del. C. 1953, §  708; 57 Del. Laws, c. 369 ; 58 Del. Laws, c. 459 ; 59 Del. Laws, c. 441, §§  1-3 ; 60 Del. Laws, c. 544, §  1 ; 70 Del. Laws, c. 186, §  1 ; 72 Del. Laws, c. 187, §  6 ; 84 Del. Laws, c. 42, § 1 ; Delaware General Assembly Judicial Executive Contact Twitter Help function submitSearch() { if (!window.location.origin) { window.location.origin = window.location.protocol + "//" + window.location.hostname + (window.location.port ? ':' + window.location.port : ''); } keyword = document.getElementById('srch-term').value; window.location.href = "/Search?query=" + keyword; } document.getElementById('srch-term').onkeyup = function (e) { if (e.keyCode == 13) { submitSearch(); } } § 721 Commencement of proceedings; venue; notice; pleadings; attorney for child; removal from jurisdiction; considerations. (a) A child custody proceeding is commenced in the Family Court of the State, or as otherwise provided by law, by a parent filing a petition seeking custody of the child in the county where the child is permanently a resident or where the child is found. (b) 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. (c) The Court may, in the interest of the child, appoint an attorney to represent the child in the proceedings. A fee for an attorney so appointed shall be allowed as part of the costs of the proceeding. (d) Upon the filing of a petition for custody or visitation, a preliminary injunction shall be issued against both parties to the action, enjoining them from removing any natural or adopted child of the parties then residing in Delaware from the jurisdiction of this Court without the prior written consent of the parties or the permission of the Court. The preliminary injunction shall be effective against the petitioner upon the filing of the petition for custody or visitation and upon the respondent upon service of a copy of the petition. (e) A custody proceeding between parents shall be determined in accordance with §§ 722, 729 and Chapter 7A of this title, whichever shall apply. 59 Del. Laws, c. 569, §  4 ; 66 Del. Laws, c. 312, §  1 ; 67 Del. Laws, c. 236, §  1 ; 69 Del. Laws, c. 309, §§  1, 2 ; 70 Del. Laws, c. 186, §  1 ; 77 Del. Laws, c. 43, §  4 ; 84 Del. Laws, c. 42, § 1 ; § 722 Best interests of child. (a) 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 such child’s custody and residential arrangements; (2) The wishes of the child as to such child’s custodian or custodians and residential arrangements; (3) The interaction and interrelationship of the child with such child’s 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 such child’s 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 under § 701 of this title; (7) Evidence of domestic violence as provided for in Chapter 7A of this title; and (8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense. (b) The Court shall not presume that a parent, because of such parent’s sex, is better qualified than the other parent to act as a joint or sole legal custodian for a child or as the child’s primary residential parent, nor shall it consider conduct of a proposed sole or joint custodian or primary residential parent that does not affect such parent’s relationship with the child. 59 Del. Laws, c. 569, §  4 ; 67 Del. Laws, c. 236, §§  2, 3 ; 69 Del. Laws, c. 309, §  3 ; 70 Del. Laws, c. 186, §  1 ; 74 Del. Laws, c. 311, §  1 ; 84 Del. Laws, c. 42, § 1 ; § 723 Temporary orders. (a) A party to a custody or visitation proceeding may move for a temporary custody or visitation order. An application for temporary custody or visitation shall be accompanied by an affidavit setting forth the factual basis for the motion or application with particularity. The Court may issue a temporary custody or visitation order without requiring notice to the other party and without a hearing only if it finds on the basis of the affidavit or other evidence that irreparable harm may result to the minor child if such an order is not issued without notice to the other interested parties or any opportunity by them to be heard. In the event such an order is entered, a copy of the order shall be served upon all other interested parties as soon as practicable and they shall have an opportunity to be heard in opposition to the application as soon as practicable. (b) If a custody and/or visitation proceeding commenced in the absence of a petition for divorce or annulment is dismissed, any temporary custody or visitation order shall be vacated. 59 Del. Laws, c. 569, §  4 ; 67 Del. Laws, c. 236, §  4 ; § 724 Interviews. (a) The Court may interview the child in chambers to ascertain the child’s wishes as to the child’s custodian and may permit counsel to be present at the interview. The Court shall, at the request of a party, cause a record of the interview to be made and it shall be made part of the record in the case. (b) The Court may seek the advice of professional personnel whether or not they are employed on a regular basis by the Court. The advice given may be in writing and shall for good cause shown be made available by the Court to counsel of record, parties and other expert witnesses upon request, but shall otherwise be considered confidential and shall be sealed and shall not be open to inspection, except by order of the Court. Counsel may call for cross-examination any professional personnel consulted by the Court. (c) The Court may, sua sponte or upon request of any party including the child, interview a child on the record regarding any factual statements pertaining to the matter before the Court. Any party may request to submit questions to the judicial officer to be asked of the child. Where all parties are represented, the Court may upon request permit counsel for the parties to observe the interview if, in the opinion of the Court, their presence will not adversely affect the welfare or well-being of the child. The Court may permit any person to be present during the interview whose presence, in the opinion of the Court, contributes to the welfare or well-being of the child. All parties to the matter shall be entitled to review the recorded interview in its entirety. Upon request, the Court may provide an oral or written summary of the interview to the parties. (d) An out-of-court statement made by a child may be admitted into evidence by the Court if reasonable notice of the intention to offer the out-of-court statement is given to all parties and: (1) The child is available to be interviewed pursuant to subsection (c) of this section, and the statement touches upon the matter before the Court; or (2) The child’s out-of-court statement is shown to possess particularized guarantees of trustworthiness, and the child is found by the Court to be unavailable to be interviewed on any of these grounds: a. The child’s death; b. The child’s absence from the jurisdiction; c. The child’s total failure of memory; d. The child’s refusal to comply with subsection (c) of this section; e. The child’s physical or mental disability; f. The existence of a privilege involving the child; g. The child’s incompetence, including the child’s inability to communicate about the matter before the Court due to fear or a similar reason; or h. Substantial likelihood that the child would suffer emotional trauma from being interviewed as set forth in subsection (c) of this section. (e) The Court shall support with findings on the record any rulings pertaining to the child’s unavailability and the trustworthiness of the out-of-court statement admitted pursuant to subsection (d) of this section. In determining whether a statement possesses particularized guarantees of trustworthiness under paragraph (d)(2) of this section, the Court may consider, but is not limited to considering, the following factors: (1) The child’s personal knowledge of the event; (2) The age and maturity of the child; (3) Certainty that the statement was made, including the credibility of the person testifying about the statement; (4) Any apparent motive the child may have to falsify or distort the event, including bias, corruption or coercion; (5) The timing of the child’s statement; (6) Whether more than 1 person heard the statement; (7) Whether the child was suffering pain or distress when making the statement; (8) Whether the child’s young age makes it unlikely that the child fabricated a statement that represents a graphic, detailed account beyond the child’s knowledge and experience; (9) Whether the statement has a “ring of verity,” has internal consistency or coherence and uses terminology appropriate to the child’s age; (10) Whether the statement is spontaneous or directly responsive to questions; (11) Whether the statement is suggestive due to improperly leading questions. (f) This section shall in no way limit the admissibility of any statement under other Court rules or statutes governing admissibility. This section shall apply to all proceedings governed by this title as well as to all proceedings set forth in subchapter II of Chapter 9 of Title 16. 59 Del. Laws, c. 569, §  4 ; 70 Del. Laws, c. 186, §  1 ; 74 Del. Laws, c. 303, §  1 ; 77 Del. Laws, c. 43, §  5 ; 84 Del. Laws, c. 42, § 1 ; § 725 Investigations and reports. Repealed by 74 Del. Laws, c. 200, § 1, effective Jan. 28, 2004. § 726 Hearings. (a) The Court without a jury shall determine questions of law and fact. All hearings and trials shall be conducted in private but the Court may admit any person who has a direct and legitimate interest in the particular case or a legitimate educational or research interest in the work of the Court. (b) If the Court finds it necessary to protect the child’s welfare, that the record of any interview, report, investigation or testimony in a custody proceeding be kept secret, the Court shall make an appropriate order sealing the record. (c) The Court may tax as costs the payment of necessary travel and other expenses incurred by any person whose presence at the hearing the Court deems necessary to determine the best interests of the child. 59 Del. Laws, c. 569, §  4 ; § 727 Custody. (a) Whether the parents have joint legal custody or 1 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 such child’s emotional development. (b) Any custody order entered by the Court may include the following provisions: (1) Granting temporary joint or sole custody for a period of time not to exceed 6 months in duration to give the parents the opportunity of demonstrating to the satisfaction of the Court their ability and willingness to cooperate with the custodial arrangement ordered. Following a timely review of this temporary order by the Court either at the end of this temporary period or sooner upon the application of any party to the proceeding, the Court shall have the authority to continue or modify the temporary order on a permanent basis. (2) Counseling of the parents, and their child if appropriate, by a public or private agency approved by the Court to help the parents develop the necessary skills to deal effectively with the major as well as daily decisions involving their child under the custodial arrangement ordered, to continue until such time as the Court is advised in writing by the agency that such counseling is no longer required. Counseling expenses may be assessed by the Court as a cost of the proceeding. (c) Any custody order entered by the Court shall include a contact schedule by the child with both parents which shall control absent parental modification by written agreement. (d) Any custody order entered when 1 or both parents is a member of the armed forces, including the National Guard, and is being deployed, shall be an interim order, modifiable upon the return of the Armed Forces member to the United States or termination of service. (e) A police officer may enter private property to take physical custody of a child to enforce the Court’s custody order when such order requests the assistance of a police officer. 67 Del. Laws, c. 236, §  5 ; 76 Del. Laws, c. 331, §  1 ; 83 Del. Laws, c. 461, § 2 ; 84 Del. Laws, c. 42, § 1 ; § 728 Residence; visitation; sanctions. (a) The Court shall determine, whether the parents have joint legal custody of the child or 1 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 such child’s 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 such parent’s 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 resides or children reside; (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) of this section. (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. 67 Del. Laws, c. 236, §  6 ; 69 Del. Laws, c. 140, §  1 ; 70 Del. Laws, c. 186, §  1 ; 71 Del. Laws, c. 285, §  27 ; 75 Del. Laws, c. 388, §  1 ; 76 Del. Laws, c. 174, §§  1, 7 ; 77 Del. Laws, c. 43, §§  6, 7 ; 84 Del. Laws, c. 42, § 1 ; § 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 such child’s 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 such child’s 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 such child’s 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 each such parent’s 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. 59 Del. Laws, c. 569, §  4 ; 67 Del. Laws, c. 236, §  7 ; 70 Del. Laws, c. 186, §  1 ; 84 Del. Laws, c. 42, § 1 ; § 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. 59 Del. Laws, c. 569, §  4 ; 70 Del. Laws, c. 186, §  1 ; 75 Del. Laws, c. 378, §  1 ; § 731 Attorneys’ fees. The Court from time to time, after considering the legal and factual basis for the action, the results obtained, the financial resources of the parties, and such other factors as the Court deems just and equitable, may order a party to pay all or part of the cost to another party of maintaining or defending any proceedings under this chapter and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of such proceedings. The Court may order that the amount be paid directly to the attorney, who may enforce the order in such attorney’s own name. 59 Del. Laws, c. 569, §  4 ; 67 Del. Laws, c. 236, §  8 ; 70 Del. Laws, c. 186, §  1 ; 84 Del. Laws, c. 42, § 1 ; § 732 Procedural rights. Each party to a proceeding under this chapter (including the child, if counsel or a guardian ad litem for the child has been appointed by the Court) shall possess all the procedural rights which those parties would have heretofore possessed in any proceeding brought pursuant to this chapter in the Superior Court of this State, including, but not limited to, the following: (1) Right to institute and retain complete control of the suit; (2) Right to select counsel; and (3) Right to appeal to the Supreme Court of this State on the record from interlocutory or final orders, such appeals to be in the form and manner provided by the Rules of the Supreme Court. 67 Del. Laws, c. 236, §  9 ; § 733 Stepparent custody in certain circumstances. Notwithstanding that there is a surviving natural parent, upon the death or disability of the custodial or primary placement parent, the Court, at the request of the stepparent shall continue the placement of the child or children with the stepparent pending a hearing on the merits, provided the child has or children have resided with the stepparent immediately prior to the death or disability of the custodial or primary placement parent. Where the child has or children have so resided with the stepparent the Court shall apply the provisions of § 722 of this title and may grant permanent custody or primary physical placement to the stepparent. If the Court grants custody or primary placement of the child or children to the stepparent, the stepparent shall have all of the rights and obligations of a parent until such time as the stepparent no longer has custody or primary placement of the child or children. 70 Del. Laws, c. 146, §  1 ; 70 Del. Laws, c. 186, §  1 ; § 734 Relocation. When in the course of litigation involving custody or visitation, there is a proposed relocation of a child for a period of 60 days or more involving either a move outside the State of Delaware or a move that materially affects the current custodial and residential arrangement or order, the Court must consider the following factors: (1) The nature, quality, extent of involvement, and duration of the child’s relationship with the individual proposing to relocate and with the nonrelocating individual, siblings, and other significant individuals in the child’s life. (2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child. (3) The feasibility of preserving the relationship between the nonrelocating individual and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties. (4) The child’s preference, taking into consideration the age and maturity of the child. (5) Whether there is an established pattern of conduct of the individual seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating individual; (6) Whether the relocation of the child will enhance the general quality of life for both the individual seeking the relocation and the child, including financial or emotional benefit or educational opportunity. (7) The reasons of each individual for seeking or opposing the relocation. (8) Any other factor affecting the best interest of the child. 83 Del. Laws, c. 171, § 1 ; Delaware General Assembly Judicial Executive Contact Twitter Help function submitSearch() { if (!window.location.origin) { window.location.origin = window.location.protocol + "//" + window.location.hostname + (window.location.port ? ':' + window.location.port : ''); } keyword = document.getElementById('srch-term').value; window.location.href = "/Search?query=" + keyword; } document.getElementById('srch-term').onkeyup = function (e) { if (e.keyCode == 13) { submitSearch(); } }