Rule 408.Protection of a Child or Incompetent Adult

Sponsoring a child's petition. An adult may sponsor a PFA petition to protect a child where the child and the respondent are within the protected class. A parent or guardian who is themselves within the protected class with the respondent proceeds under Rule 402 instead.

The petition names the CHILD as petitioner and typically proposes the sponsor as guardian ad litem. One child per petition. Every sponsored petition is reviewed by a judicial officer, who decides whether it requires a report to the Division of Family Services — because an allegation that a child is being abused is information the child protection system should have, whatever happens to the petition.

Emergency relief. Where the sponsor is a parent, guardian, grandparent, great-grandparent, aunt, uncle, sibling, first cousin, first cousin once removed, or an appointed guardian ad litem, the child petitioner may receive an ex parte order or expedited scheduling. An ex parte order issues only where the sponsor establishes that the child is at imminent risk of further abuse, that the child's parents or legal guardian are unwilling or unable to act, and that the sponsor is an appropriate person to take on protecting the child. Anyone outside that list of relatives must proceed under Rule 65.2 to be named a temporary guardian.

Without a lawyer, up to a point. A sponsor may appear and proceed without counsel at an emergency hearing and on the motion to be appointed guardian ad litem, and once appointed may take part in case review and negotiate a consent order. But a guardian ad litem cannot act as the child's legal representative at trial unless they are licensed in Delaware or the court approves them to proceed without representation.

Notice and the hearing. A hearing on the guardian ad litem application is scheduled in place of case review. Notice and copies of the petition and application go to the opposing party and to the child's parents and legal guardian, at each person's last known postal and email address. A child aged 14 or over should attend.

At that hearing the court considers four things: whether it is in the child's best interest to proceed with the litigation; where the sponsor is not a parent or guardian, why the parents or guardians are not bringing it; what resources are available to secure the child professional legal representation; and whether the sponsor or somebody else is an appropriate guardian ad litem.

The outcome. The court may appoint the sponsor, appoint someone else, deny the motion and let the child proceed without a guardian ad litem, or deny it and dismiss the petition. Short of dismissal, the case goes to case review or the court proceeds to review on its own.

Counsel at trial. If the motion is granted, the court also decides whether the child and guardian ad litem need professional legal representation, weighing the complexity of the case, the maturity and intellect of the child, and the guardian's own abilities.

How long it lasts. The appointment continues until the resulting PFA order expires or is terminated, or the child's 18th birthday, whichever comes first, and may be reassessed at any hearing on a motion to modify or enforce. The same guardian ad litem may seek appointment in a custody or similar petition for the child brought within the order's duration — so the person who knows the case is not lost when the forum changes.

Incompetent adults. A PFA may be filed for an incompetent person by a previously appointed representative — a guardian, trustee, committee, conservator or similar fiduciary — or filed and signed for an infirm adult by another adult subject to later appointment as guardian ad litem. Ex parte relief is available only to a previously appointed representative, or to a person holding a power of attorney authorised to bring and defend legal actions. A previously appointed representative may go straight to case review without counsel but must get the court's approval to try the case without a lawyer.

The agencies. The Division of Family Services or Adult Protective Services may file a petition to protect a child or incompetent adult with or without a guardian ad litem, move to intervene in a pending case, or appear as a friend of the court to report on investigations and available resources.