Rule 408. Protection of a Child or Incompetent Adult [Effective Jan. 5, 2026]

(a) Guardian ad litem. An adult may sponsor a PFA petition to obtain protection of a child if the child and the respondent are within the protected class. However, a parent or guardian who is also within the protected class with the respondent must proceed under Rule 402(a). Furthermore:

(1) A sponsored petition must name the child as the petitioner and should, typically, propose the sponsor as the child's guardian ad litem (GAL) pursuant to Rule 17(b). Under this rule, there can only be one child per petition. All sponsored petitions will be reviewed by a Family Court judicial officer who shall determine whether the petition mandates a report to the Division of Family Services (DFS).

(2) Notwithstanding Rule 17(b)(2), if the sponsor is a parent, guardian, grandparent, great-grandparent, aunt, uncle, sibling, first cousin, first cousin once removed, or an appointed guardian ad litem, a child petitioner may receive an ex parte order or expedited scheduling. An ex parte order will only issue upon the sponsor's establishment that the child is at imminent risk of further abuse, the child's parents or legal guardian are unwilling or unable to take action to prevent the abuse, and the sponsor is an appropriate person to undertake the responsibility of protecting the child. Any other person wanting to facilitate emergency relief would have to proceed pursuant to Rule 65.2 to be named as a temporary guardian.

(3) A sponsor may appear and proceed without counsel at a hearing for an emergency order and on the motion for appointment of GAL. Once appointed, a GAL can participate in case review and negotiate a consent order, or other resolution of the petition. However, a GAL cannot personally act as the minor child's legal representative at trial unless they are either licensed to practice law in the State of Delaware or approved by the Court to proceed without representation pursuant to subsection (e).

(b) Notice. A hearing on the GAL application will be scheduled in lieu of case review. Notice and a copy of the petition and GAL application will be transmitted to the opposing party and the child's parents and legal guardian to each individual's last known address and email address, if known. If age 14 or over, the child petitioner should attend the hearing.

(c) Hearing. At the GAL motion hearing, the Court will consider:

(1) Whether it is in the child's best interest to proceed with the litigation,

(2) If the sponsor is not a parent or guardian, then why the child's parents or guardians are not pursuing the litigation,

(3) The available resources to secure the child professional legal representation, and

(4) Whether the sponsor or another individual is an appropriate GAL.

(d) Grant or Deny. Upon consideration of the motion the Court may:

(1) Grant the motion and appoint the sponsor as GAL,

(2) Grant the motion and appoint another individual as GAL,

(3) Deny the motion and allow the child to proceed without a GAL, or

(4) Deny the motion and dismiss the petition. If the petition is not dismissed as per paragraph (4), then the Court may either schedule the petition for case review pursuant to Rule 404, or proceed sua sponte with case review but subsection (b) shall not apply.

(e) Self-representation. If the GAL motion is granted, the Court shall also determine whether the child and GAL are required to have professional legal representation or can proceed to trial without counsel. Whether the child and GAL can proceed to trial without legal representation should depend upon the complexity of the case, the maturity and intellect of the child, and the personal abilities of the GAL. Unless dismissed, the petition will proceed to case review or trial at the discretion of the Court.

(f) Duration of GAL. An appointment as GAL continues until the expiration or termination of any resulting PFA order or the child's 18th birthday, whichever first occurs. At each hearing on a motion to modify or enforce the PFA order, the Court may reassess the GAL appointment. Any such GAL may seek appointment as GAL of the child in any custody or similar petition in the interest of the child pending or filed within the duration of the PFA order.

(g) Incompetent Adults. In accordance with Rule 17(c), a PFA may be filed on behalf of an incompetent person by the individual's previously appointed representative, such as a legal guardian, trustee, committee, conservator, or other like fiduciary. A PFA petition may also be filed and signed on behalf of an infirm adult by another adult subject to subsequent appointment as GAL. Ex parte relief may only be awarded upon application of a previously appointed representative as defined in Rule 17(c), or a person holding power of attorney authorized to bring and defend legal actions as described in Rule 17(c)(1)(D). Motions for appointment of GAL for an incompetent adult shall also proceed, generally, as provided in this rule and Rule 17(c). However, a previously appointed representative as defined by Rule 17(c) may proceed directly to case review without counsel but must seek approval of the Court to proceed to trial without counsel. If case review does not produce a resolution and the previously appointed representative wishes to proceed to trial without counsel, a forthwith hearing pursuant to Rule 404(d) shall occur.

(h) DFS/APS. The Division of Family Services (DFS) or Adult Protective Services (APS) may file a petition for the protection of a child or incompetent adult with or without appointment of a GAL, or may file a motion to intervene in any such pending action, or may appear as a friend of the court to report on investigations and available resources. History. Adopted, effective Jan. 5, 2026.