Delaware

Statutory framework; factor structure: 8.

Authority

Del. Code Ann. tit. 13, § 722(a)

Source framework

Statutory

Factor structure

8

Operative language

shall

Catch-all language

preamble

Presumptions in the original survey

DV rebuttable, § 705A

Child's voice / age rule

none

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Irretrievable breakdown with reconciliation improbable is the statutory basis. Section 1505 identifies voluntary separation, respondent misconduct, mental illness and incompatibility as characterizations of breakdown.

Authority

Del. Code Ann. tit. 13, § 1505 ; definitions § 1503

Grounds without a misconduct showing

Irretrievable breakdown with reconciliation improbable is the statutory basis. Section 1505 identifies voluntary separation, respondent misconduct, mental illness and incompatibility as characterizations of breakdown.

Other grounds and proof conditions

Misconduct is expressly relevant to the statutory route, including the separation exception. Calling Delaware wholly indifferent to fault would be misleading.

Separation

Six months before ruling, except separation caused by misconduct. Section 1503 permits the same residence with separate bedrooms and no sexual relations. Section 1505(e) addresses reconciliation attempts and the final 30 days.

Timing

The six months is a separation requirement, not a filing-to-hearing waiting period.

Relief without dissolution

No separate decree in ch. 15

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Statutory relocation factors. No allocation found. No separate relocation notice rule found; consent or court permission may still be required.

Authority

13 Del. C. 734, 721(d)

Court test

statutory relocation factors

Burden classification

no allocation found

Notice classification

no

Trigger classification

functional (move that significantly affects the parenting arrangement)

Effect of silence

No silence procedure; § 721(d) injunction applies once effective

What the court weighs

Best interests under 722 (factors including the parents' wishes, the child's wishes, interaction with family, adjustment to home, school and community, health, compliance with duties, domestic violence and criminal history), plus, since 2021, eight mandatory relocation factors under 734: the nature and quality of the child's relationships with the relocating and non-relocating individuals and others. The child's age, needs and the likely impact of the move. The feasibility of preserving the relationship through visitation. The child's preference. Whether the individual seeking relocation has an established pattern of conduct either to promote or thwart the relationship of the child and the nonrelocating individual. Whether the move enhances quality of life for both the relocating individual and the child. Each side's reasons. And any other best-interest factor. When both parents seek to relocate, the Family Court may adapt the 734 factors (Green v. Fletcher, Del. 2025). Before 2021 the court could, but need not, consider the Model Relocation Act factors (Worthington v. Bachman, Del. May 31, 2017).

Who carries the burden

The statute is silent. No burden allocation identified, including in the Supreme Court orders applying 734. Unclear. Price v. Boulden (2014) and Nash v. Wilson (2019) also allocate no burden.

Notice and safety exceptions

No general relocation notice statute found. Instead, section 721(d) imposes an automatic mutual preliminary injunction: when a custody or visitation petition is filed, both parties are enjoined from removing a child then residing in Delaware from the jurisdiction without the parties' prior written consent or the Court's permission. It binds the petitioner on filing and the respondent on service.

Which moves trigger the rule

In the course of custody or visitation litigation, a proposed relocation of a child for 60 days or more that is either a move outside Delaware or a move that materially affects the current custodial and residential arrangement or order (734).

Objections and the effect of silence

No statutory objection deadline is identified. Relocation may be litigated in a custody or visitation proceeding. Under § 721(d), the preliminary injunction prohibits removal from the court’s jurisdiction of a child then residing in Delaware without the parties’ prior written consent or the court’s permission; it is effective against the petitioner upon filing and the respondent upon service. Outside that injunction, § 721(d) does not establish a silence procedure.

The modification threshold

No separate material-change threshold appears in § 734. Section 729 distinguishes modification of custody or residence orders: a consent order, interim order, or written agreement may be modified at any time under § 722. For an order after a full hearing on legal custody or primary residence, an application filed within two years requires a finding after a hearing that continued enforcement may endanger physical health or significantly impair emotional development; an application filed more than two years after the most recent order requires consideration of harm and advantages, compliance with prior orders and duties, and the § 722 factors. Section 729(a) separately addresses visitation. See 13 Del. C. § 729.

Other qualifications

Upon filing a custody or visitation petition, § 721(d) directs a preliminary injunction against removal from the court’s jurisdiction of a child then residing in Delaware without the parties’ prior written consent or court permission. It binds the petitioner on filing and the respondent on service. Under § 727(d), a custody order entered when a parent is being deployed is an interim order.

Burden summary

No allocation found

Notice summary

No separate relocation notice rule found; consent or court permission may still be required

Trigger summary

Effect on parenting arrangement

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