CHAPTER 236

FORMERLY

HOUSE BILL NO. 301

AS AMENDED BY

HOUSE AMENDMENT NOS. 2 AND 3 AND SENATE AMENDMENT NO. 3

AN ACT TO AMEND CHAPTER 7, TITLE 13 OF THE DELAWARE CODE RELATING TO CUSTODY.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend §721, Chapter 7, Title 13 of the Delaware Code by adding thereto a new subsection (e) to read as follows:

"(e) A custody proceeding between parents shall be determined in accordance with §722 or §729, whichever shall apply. A custody proceeding between a parent and any other person shall not be decided in favor of the other person unless the Court concludes, after a hearing, (1) that the child is dependent or neglected within the meaning of §901 of Title 10, and (2) that the application of the standards set forth in §722 or §729, whichever shall apply, lead the Court to conclude that the child should not be placed in the custody of one of his or her parents."

Section 2. Amend subsection (a), §722, Chapter 7, Title 13 of the Delaware Code by deleting all of subsection (a) and substituting in lieu thereof the following:

"(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 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; and

(5) The mental and physical health of all individuals involved; and

(6) Past and present compliance by both parents with their rights and responsibilities to their child under §701 of this chapter."

Section 3. Amend §722, Chapter 7, Title 13 of the Delaware Code by striking subsection (b) in Its entirety and substituting in lieu thereof the following:

"(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 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 his or her relationship with the child."

Section 4. Amend §723, Chapter 7, Title 13 of the Delaware Code by striking subsection (a) in its entirety and substituting in lieu thereof the following:

"(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."

Section 5. Amend Chapter 7, Title 13 of the Delaware Code by striking existing §727 in its entirety and substituting in lieu thereof the following:

"§727. Custody.

(a) 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.

(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 six 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.

(e) 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."

Section 6. Amend Chapter 7, Title 13 of the Delaware Code by striking existing §728 in its entirety and substituting in lieu thereof the following:

"§728. Residence; visitation; sanctions.

(a) 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.

(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) denying or restricting such contact. If the Court finds, after a hearing, that a
parent or any other person 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 one or more of the following remedies or sanctions.

(A) Extra visitation with the child to enable the child to make up any wrongfully denied visitation with a parent;

(B) 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;

(C) A surcharge to be assessed against the parent with rights of visitation with the child or children for his or her 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 ten percent of the visiting parent's monthly child support obligation for each violation and shall be payable to the parent with whom the child or children reside(s).

(D) A fine in the discretion of the Court; or

(E) 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 or custodian 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) above that the best Interests of the child would be served by ordering such a modification. The filing of an application under this subsection (c) by any person shall not be a defense in an action brought against any person under subsection (b) 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)."

Section 7. Amend Chapter 7, Title 13 of the Delaware Code by striking the existing §729 in its entirety and substituting in lieu thereof the following:

1729. 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),

(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 his or her residence may be modified at any time by the Court in accordance with the standards set forth in §722.

(c) An order entered by the Court after a full hearing on the merits concerning the legal custody of a child or his or her primary residence may be modified only as follows:

(A) 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 his or her emotional development.

(B) 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:

(i) 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;

(ii) The compliance of each parent with prior orders of the Court concerning custody and visitation and compliance with his or her duties and responsibilities under §727 including whether either parent has been subjected to sanctions by the Court under §728(b) since the prior order was entered; and

(iii) The factors set forth In §722."

Section 8. Amend §731, Chapter 7, Title 13 of the Delaware Code by deleting the words the financial resources of the parties" after the word "considering" and inserting after the word "considering" the following:

"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,".

Section 9. Amend Chapter 7, Title 13 of the Delaware Code by adding a new §732 to read as follows:

"§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:

(a) Right to institute and retain complete control of the suit;

(b) Right to select counsel; and

(c) 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."

Section 11. This Act shall become effective 30 days after the day on which it is enacted into law. Actions commenced prior to the effective date of this Act shall be governed by the provisions of the Delaware Code 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 12. 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 rights or liability previously barred by statute.

Section 13. If the provision of this Act or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

Approved June 15, 1990.