Your Rights When You've Lost a Custody Battle
A Delaware attorney addresses some common misconceptions
on September 15, 2020
Updated on January 18, 2023
No parent wants to lose custody of their child. But losing custody of your child doesn’t mean you won’t have any involvement in your child’s life. Delaware’s custody and visitation laws provide a number of rights even to parents who end up on the losing end of their child custody case.
To understand your rights, it’s helpful to know how Delaware law talks about custody. “Delaware doesn’t use the terminology ‘full custody,’ that’s just what everybody says,” explains Andrew Gonser, a family law attorney in Wilmington. Instead, the state uses the terms “joint legal custody” or “sole legal custody,” which have to do with decision-making. “If somebody has sole legal custody, that just means they get to make all the decisions,” Gonser says. “It’s very rare and difficult to get that; most people have joint legal custody.”
The other part of a child custody order has to do with where the child will live or physical custody: either primary residence with one parent caregiver and visitation rights for the other, or shared residence that allows the child to spend equal time with each parent.
A Parent’s Rights When They Don’t Have Sole Legal Custody
If you’ve lost your custody battle and your child’s other parent has sole legal custody, you still retain your parental rights. “What that means is, if something happens to the parent, the child can receive death benefits,” Gonser says. “If they die without a will, they can still inherit through the intestate process.”
The noncustodial parent also has a right to certain information about the custody decesion. “You have the right, upon request, to get information about school and health care,” Gonser says. “Sometimes religion comes up, but not as often as school and medical.” That means that, even if you can’t make decisions about the school your child attends, for example, you can still request report cards or medical records.
You can also still attend your child’s events, such as a school holiday parade, concert or sports game, although Gonser notes that there may be other considerations when it comes to attending these events. “A lot of times when somebody has sole legal custody, it’s because there’s an issue,” he says.
What Should You Do if Your Rights Are Being Denied?
If your child’s other parent refuses you any of your rights, such as not keeping the visitation schedule, the first step is to file a contempt petition, which both notifies the court that the other parent is not complying with an existing order regarding custody of the child and requests additional court action.
Another option is to file a request to modify an existing court order. Gonser gives the example of a case he handled involving a teen who refused to visit her mother because the mother’s new boyfriend made her uncomfortable. The mother filed a contempt petition, and the father countered by filing to modify the custody arrangement because the teen no longer wanted to visit the mother.
“Every custody order is modifiable because the court has to do and continue to do what’s in the best interest of the child,” Gonser says. “And that changes as kids get older; schools change, interests change and people move on and get new paramours and all kinds of stuff.”
Do You Need a Lawyer?
Many parents can and do handle their own custody cases, but seeking legal advice from an experienced family law attorney can make a big difference in your case. “I think generally, it’s better,” Gonser says. “And I think the court appreciates if you have a lawyer, even if it’s for relatively simple issues, just because the presentation of the facts is going to be so much cleaner and in order. But having said that, my understanding is that, at least in Delaware, the vast majority of family court is pro se.”
A law firm, law office or family lawyer will be able to handle all the documents and court filings for the child’s well being and also reach out to the other co-parent’s attorney to see if they can convince the other parent to comply with an existing custoy order child support. If you do decide to involve a lawyer, Gonser recommends contacting them as soon as possible to avoid missing critical deadlines and ensuring there is still time for a lawyer to help.