CHAPTER 569

FORMERLY

HOUSE BILL NO. 811

AS AMENDED BY HOUSE AMENDMENTS NO. 1 AND 2

AN ACT TO AMEND CHAPTER 7, TITLE 13, DELAWARE CODE, RELATING TO PARENTS AND CHILDERN.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Amend §705 and §706 of Chapter 7, Title 13, Delaware Code, by striking said sections in their entirety.

Section 2. Amend §701 of Chapter 7, Title 13, Delaware Code, by striking said section in its entirety and substitute a new §701 to read as follows:

§701. Rights and responsibilities of parents; guardian appointment

(a) The father and mother are the joint natural custodians 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 his or her 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) The provisions of 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 his or her parents or parent.

Section 3. Amend §701, §702, §703, §704, §707, §708 and §710 of Chapter 7, Title 13, Delaware Code, by designating the above sections as:

"SUBCHAPTER I. GENERAL PROVISIONS"

Section 4. Amend Chapter 7, Title 13, Delaware Code, by adding thereto a new subchapter to be designated as Subchapter II to read as follows:

"SUBCHAPTER II. CUSTODY PROCEEDINGS

§721. Commencement of custody proceeding; jurisdiction; notice; appointment of attorney for child

(a) A child custody proceeding is commenced in the Family Court of the State of Delaware, 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 he 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.

§722. Best interests of child

(a) The Court shall determine custody 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 custody;

(2) the wishes of the child as to his custodian;

(3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests;

(4) the child's adjustment to his home, school and community; and

(5) the mental and physical health of all individuals involved.

(b) The Court shall not presume that a parent, because of his or her sex, is better qualified than the other parent to act as custodian for a child, nor shall it consider conduct of a proposed custodian that does not affect his relationship to the child.

§723. Temporary orders

(a) A party to a custody proceeding may move for a temporary custody or visitation order. The motion therefor must be supported by an affidavit, as provided in §730 of this title. The Court may award temporary custody or temporary visitation after a hearing, or, if there is no objection, solely on the basis of the affidavits.

(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.

§724. Interviews

(a) The Court may interview the child in chambers to ascertain the child's wishes as to his 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.

§725. Investigations and reports

(a) In all custody proceedings, the Court shall, upon motion of either party or upon the Court's own motion, order the Court staff to investigate and file a written report or reports concerning custodial arrangements for the child. Except as otherwise provided herein, such reports shall be considered confidential and shall not be available for public inspection unless by order of Court for good cause shown. The cost of each investigation up to a maximum of $50.00 may be assessed as part of the costs of the proceeding.

(b) In preparing a report concerning a child, the staff investigator may consult any person who may have information about the child and his potential custodial arrangements. Upon order of the Court, the investigator may refer the child to professional personnel for diagnosis and evaluation. The investigator may consult with and obtain information from medical, psychiatric, or other expert persons who have served the child in the past without obtaining the consent of the parent or the child's custodian; but the child's consent must be obtained if he has reached the age of 16, unless the Court finds that he lacks mental capacity to consent. If the requirements of this §725 are fulfilled, the investigator's report may be received in evidence at the hearing.

(c) The investigator's report to the Court and the investigator's file of underlying data and reports, complete texts of diagnostic reports made to the investigator pursuant to the provisions of this section, and the names and addresses of all persons whom the investigator has consulted, shall be available for examination by counsel and by any party not represented by counsel for good cause shown. Any party to the proceeding may call the investigator and any person whom he has consulted for cross-examination. No party may waive his right of cross examination prior to the hearing.

§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.

§727. Visitation privileges

(a) A parent not granted custody of the child is entitled to reasonable visitation privileges unless the Court finds, after a hearing, that visitation by the parent would endanger the child's physical health or significantly impair his emotional development.

(b) The Court may modify an order granting or denying visitation privileges whenever modification would serve the best interests of the child.

§728. Authority of custodian

Except as otherwise agreed by the parties in writing at the time of the custody decree, the custodian may determine the child's upbringing, including his education, health care, place of residence and religious training, unless the Court after hearing finds, upon motion by the non-custodial parent, that a specific limitation of the custodian's authority would be in the best interests of the child.

§729. Modification

(a) If a motion for modification has been filed, whether or not it was granted, no subsequent motion may be filed within two years after disposition of the prior motion, unless the Court decides on the basis of affidavits that there is reason to believe that the child's present environment may endanger his physical health or significantly impair his emotional development.

(b) The Court shall not modify a prior custody decree unless it finds that the modification is necessary to serve the best interests of the child. In applying these standards the Court shall retain the custodian established by the prior decree unless:

(1) the custodian agrees to the modification; or

(2) the child has been integrated into the family of the petitioner with the consent of the custodian; or

(3) the child's present environment endangers his physical health or significantly impairs his emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.

§730. Affidavit practice

A party seeking a temporary custody order or modification of a custody decree shall submit together with his moving papers an affidavit setting forth facts supporting the requested order or modification and shall give notice, together with a copy of his affidavit, to other parties to the proceeding, who may file opposing affidavits. The Court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, in which case it shall set a date for hearing on an order to show cause why the requested order or modification should not be granted.

§731. Attorneys' fees

The Court from time to time, after considering the financial resources of the parties, 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 attorneys' 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 his name.

Section 5. This Act shall become effective immediately upon its enactment into law. Actions commenced prior to the effective date of this Act shall be governed by the provisions of Chapter 7, Title 13, operative prior to such effective date and those provisions shall remain in effect as to those actions as if this Act were not in effect.

Section 6. Nothing in this Act shall be construed to affect any right, duty or liability arising under any statutes in effect immediately prior to the effective date of this Act, but the same shall be continued and concluded under such prior statutes. Nothing in this Act shall revive or reinstate any right or liability previously barred by statute.

Section 7. If any provision of this Act or the application thereof to any person or circumstances be held invalid, the invalidity shall not effect other provisions or application of the Act which can be given affect without the invalid provision or application, and to this end the provisions of this Act are severable.

Approved July 29, 1974.