Grandparents' Rights in Delaware

Prior Relationship Is Key

Grandparents in Delaware can win visitation with grandchildren
Grandparents in Delaware can sue to see a grandchild under provisions for third-party visitation. Photo © Dean Mitchell | Vetta | Getty Images

Rather than being covered in their own statute, in Delaware grandparents are lumped in with other third parties who might seek visitation with a minor child. Perhaps for that reason, Delaware's relevant statutes are long and detailed and cover many areas not customarily mentioned in grandparent visitation law.

The Process

The relevant section of the law says that any non-parent relative can petition for visitation by filling out the required forms. The forms are available online as part of a 3rd Party / Grandparent Visitation Instruction Packet. The packet has much valuable explanatory material as well.

Normally once the papers are served, the case goes to mediation. The exceptions are when there is a current no-contact order in effect, when there has been a finding of domestic violence or when one of the parties is a sex offender as defined by Delaware law. Those cases usually go straight to court without an attempt at mediation.

When parties are able to come to an agreement through mediation, a consent order will be created and signed. When they are unable to agree, a court date will be set. 

See Title 13, Chapter 7A, Subchapter I. Child Protection From Domestic Violence Act and Subchapter II. Child Protection From Sex Offenders Act

What the Statutes Say

Delaware statutes allow for third party visitation, and grandparents are specifically mentioned in the law. In order to sue for visitation, grandparents should have had a "substantial and positive prior relationship with the child."

The law also contains the usual statement that visitation must be in the "child's best interest." 

In addition, each parent must fall into one of the following categories:

a. The parent consents to the third-party visitation;

b. The child is dependent, neglected or abused in the parent's care;

c. The parent is deceased; or

d. The parent objects to the visitation; however, the petitioner has demonstrated, by clear and convincing evidence, that the objection is unreasonable; and has demonstrated, by a preponderance of evidence, that the visitation will not substantially interfere with the parent/child relationship.

What this means is that if the child has two parents, neither parent is abusive or neglectful toward the child and neither parent wants the third party to have visitation, no visitation will be awarded.

See Title 13, Chapter 24, Subchapter I. General Provisions and  Subchapter II. Third-Party Visitation Proceedings.

Best Interests Standards

The law provides these standards by which best interest will be judged:

1. The wishes of the child’s parents in regard to the child's custody and living arrangements 

2. The wishes of the child as to custody and living arrangements 

3. The child's interaction with parents, siblings, grandparents and others living in the child’s home 

4. The child’s adjustment to home, school and community

5. The physical and mental health of the individuals involved 

6. How well each parent has satisfied parental rights and responsibilities in the past and what can be expected in the future

7. Any evidence of domestic violence 

8. The criminal history, including guilty pleas, pleas of no contest and criminal convictions, of anyone living in the household.

When Parental Rights Have Been Terminated

If parental rights are terminated, as occurs with adoption, the rights of the grandparents are cut off also. However, if parental rights are given up and three years pass without the child being adopted, third-party visitation may be sought. Also, agreements about visitation made prior to the termination of rights may be honored by the court.

Relevant Court Cases

In 2000 the U.S. Supreme Court decided Troxel v. Granville, a landmark case regarding visitation rights. The justices ruled that "fit parents" are presumed to make decisions that are in the best interests of their children. This principle has been upheld even when parents decide to bar grandparents from seeing their grandchildren. This ruling impacted grandparents' rights in all 50 states. Generally, after Troxel grandparents are held to a higher standard when showing that visitation would be in the best interests of the child. 

Grandparents' rights were upheld in a recent Delaware court case. In a 2015 case, Samuels v. Jowers, the Delaware Supreme Court affirmed the findings of a lower court, which had awarded visitation to the maternal grandmother and great-grandmother over the objections of the father. The amount of visitation was modest, amounting to one afternoon a month. In addition, the grandchildren in question -- twin granddaughters -- had lived with or had regular contact with the maternal grandmother for the first four years of their lives.