Publish Date: 
Wednesday, September 17, 2014

Child Custody

Historically the Courts, in dealing with the question of child custody, began their analysis by presuming that the best interests of a child of “tender years”, that is, a very young child, would be served by being placed in the primary care and custody of his or her mother.  Thus, for a father to successfully seek custody of his very young child, it was, as a practical matter, necessary for him to prove that the mother was “unfit”, often a difficult or, in some cases, impossible task.

The so-called “tender years” doctrine ended in Delaware with the passage of the present version of 13 Del. C. § 701(a)    .  That statute provides: “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.”  (supplied)

While the passage of Section 701 represented progress toward redressing the imbalance which had previously existed between mother and father in custody cases, it did not eliminate it.  This was so for a variety of reasons, the main one possibly being the fact the mothers were more often than not the primary caretakers and at home with the children, while fathers, as primary or sole breadwinners, were at work and out of the house.  

In recent years, however, scientific research has indicated that the child benefits when he or she spends substantial quality time with each parent.  As a result, the Family Court now leans more toward equal time sharing between the parents than had previously been the case.  The current Family Court guidelines state: “the Court’s goal is to have the children spend as much quality time with each parent as possible.”  The guidelines go on to outline suggested residential patterns for various aged children, which patterns evolve into a 50/50 approach to children five (5) years or older.  The guidelines are, however, expressly based on the assumption “that both parties are competent and effective parents and that the child is safe with each parent.”

As a result of this recent trend, fathers who desire a significant role in their children’s lives now have a much improved opportunity to achieve such a role.

From the father’s standpoint, achieving an equal timesharing residential arrangement, or something approaching it, has another benefit.  Under the Family Court’s computerized child support formula, a 50/50 shared custody arrangement normally has the effect of reducing a father’s child support obligation, possibly dramatically.  Even a substantial visitation schedule could produce a child support reduction.