I often hear parents express a belief or a fear that the law is biased in custody cases.  Most often I hear concerns that the Delaware Code presumes that mothers are better parents.  Perhaps this fear comes from talking with parents in other states where this may occur. For example, a recent article in Southeast Missourian noted that prior to an amendment in that state’s law the standard custody arrangement in Missouri typically allowed for a mother to have primary placement and for a father to have a visitation.

Delaware residents can take comfort in the fact that Delaware law has long prohibited gender based presumptions in custody cases.  Section 722(b) of Title 13 specifically provides,

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 …

Section 722 directs that decisions regarding the custody and residential placement shall be determined in accordance with the best interests of the child or children at issue.


Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.