Domestic Relations


Subchapter II. Custody Proceedings

The provisions of this subchapter shall apply exclusively to the DSCYF when seeking and/or obtaining custody of a child on the basis of dependency, neglect or abuse. This subchapter shall not be construed as preventing DSCYF from obtaining or seeking guardianship, termination of parental rights and/or adoption regarding a child as provided for in Chapters 9, 11 and 23 of this title. This subchapter shall be liberally construed such that the child's health and safety is the highest priority and of paramount concern as required by the Adoption and Safe Families Act, 42 U.S.C. § 671 et seq. and state law.

77 Del. Laws, c. 43, § 10.;

(a) The petition for DSCYF custody shall state:

(1) Name and address of the petitioning agency;

(2) Name, sex, date of birth of the child and, if known, the child's school of origin;

(3) The name and address of the parents, alleged father or presumed father, and if applicable, the name and address of any custodian or guardian.

(4) If the name or address of any person or organization described in paragraph (a)(3) of this section is unavailable or unknown, DSCYF shall furnish detailed information concerning the efforts made to identify and locate such individual or organization;

(5) The DSCYF allegations of dependency, neglect, and/or abuse against each parent;

(6) Efforts, where practical, made by DSCYF to identify a fit and willing relative to care for the child;

(7) A statement regarding why continuing the placement of the child in the home of the parents, guardian, custodian or caretaker is contrary to the welfare of the child; and

(8) A statement why it is in the best interests of the child to be placed in DSCYF custody.

77 Del. Laws, c. 43, § 10; 70 Del. Laws, c. 186, § 1.;

(a) When emergency custody or other emergency relief is sought by DSCYF, the Court may issue an ex parte order awarding emergency custody to DSCYF and order removal of a child from the home upon the establishment that:

(1) Continuation in the home is contrary to the welfare of the child; and

(2) Probable cause exists to believe that:

a. A child continues to be in actual physical, mental or emotional danger or there is a substantial imminent risk thereof or;

b. Immediate or irreparable harm may result to the child if such an order is not issued.

(b) Prior to granting an adjudicatory order for DSCYF custody, the Court shall find after a hearing on the merits, or accept the agreement of the parties, that:

(1) As to each parent, the child is dependent, neglected or abused;

(2) It is in the child's best interests to be in DSCYF custody.

(c) Should the elements of subsection (b) of this section be met, the Court shall also determine after a hearing on the merits or accept the agreement of the parties, the nature and extent, if any, of any contact, sharing of information and/or visitation between the parent and the child. In making such a determination, the Court shall apply the best interests of the child standard set forth in § 722 of this title, unless Chapter 7A or § 728(d)-(f) of this title apply.

77 Del. Laws, c. 43, § 10.;

(a) Termination. — Except as otherwise specified in this chapter, DSCYF custody of a child terminates:

(1) Upon the child's death;

(2) Upon adoption of the child;

(3) When the child reaches the age of majority;

(4) Upon the granting of a guardianship petition pursuant to Chapter 23 of this title; or

(5) As otherwise ordered by the Court.

(b) Modification. — Except as otherwise specified in this chapter, a DSCYF custody order may be modified at any time. In making a determination to modify the order the Court shall apply the best interests of the child standard and Chapter 7A and § 728(d)-(f) of this title, if applicable.

(c) Rescission. — Except as otherwise specified in this chapter, DSCYF custody may be rescinded upon a judicial determination that the child is no longer dependent, neglected or abused in the parent's care. The Court may rescind custody to the original custodial arrangement between the parents or an alternative custodial arrangement as determined by the Court to be in the child's best interests.

77 Del. Laws, c. 43, § 10.;

Should the Court find the elements of § 2512(b) of this title, have been met, the Court shall make findings and issue orders at each subsequent hearing regarding the following:

(1) What the permanency plan is, and whether DSCYF has made reasonable efforts to finalize that permanency plan;

(2) If the permanency plan is another planned permanent living arrangement,

a. Whether the child is at least 16 years of age, as this plan is prohibited for any child less than age 16.

b. Whether DSCYF has documented its intensive, ongoing, and, as of the date of the hearing, unsuccessful efforts made by DSCYF to return the child home or secure placement of the child with a fit and willing relative, including adult siblings, a legal guardian, or an adoptive parent, including thorough efforts that utilize search technology including social media, to find biological family members for the child.

c. What the child's desired permanency outcome is by asking the child, or where not feasible, the child's legal representative.

d. What are the compelling reasons that it continues to not be in the child's best interests to be returned home, adopted, placed with a legal guardian or with a fit and willing relative.

(3) Whether DSCYF has ensured:

a. The caregiver is exercising the reasonable and prudent parent standard.

b. The child has regular, ongoing opportunities to engage in age- or developmentally-appropriate activities, and that any barriers to participation have been identified and addressed.

c. The child has been consulted in an age-appropriate manner about the opportunities of the child to participate in the activities.

80 Del. Laws, c. 363, § 1.;

(a) When a child 17 years of age or older is in the custody of DSCYF, the Court may order the Department of Health and Social Services to determine whether the child qualifies for adult mental health or behavioral health services and, if so, to coordinate with DSCYF to develop and implement a transition plan for mental or behavioral health services for the child. The Court may further order that the transition plan include any of the following:

(1) An appropriate adult mental or behavioral health diagnosis for the child.

(2) A list of prospective adult services for which the child might qualify.

(3) Any other information or relief that the Court finds relevant to the child's transition to adulthood.

(b) DSCYF or the Department of Health and Social Services, or the appropriate divisions of either, shall develop and submit the transition plan that the Court has ordered under this section in a timely manner, as the Court directs.

81 Del. Laws, c. 164, § 1.;