(a) Real party in interest.
(1) Every action shall be pursued in the name of the real party in interest. The real party in interest is the party who actually possesses the right being asserted and has a legal right to enforce the claim.(2) The following may sue in their own names without joining the person for whose benefit the action is brought:
(A) An executor of an estate;(B) An administrator of an estate;(C) A guardian;(D) A bailee;(E) A trustee of an express trust;(F) A party with whom or in whose name a contract has been made for another’s benefit; or(G) A party authorized by statute.(3) No action shall be dismissed on the ground that it is not pursued in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.(b) Children as parties. —
(1) Except as otherwise provided by statute or rule, every child properly named as a petitioner or respondent shall be appointed a guardian ad litem.(2) A person proposing himself or herself as a guardian ad litem for a child petitioner may sign and file a petition conditional upon subsequent appointment. However, only a custodial parent, legal guardian or duly appointed guardian ad litem may seek ex parte or expedited relief on behalf of a child. A person filing a petition against a child as a respondent has the burden of initiating the appointment of a guardian ad litem for that child.(3) A parent of a child who holds joint or sole custody or a child’s court ordered guardian of the person shall be presumed a qualified guardian ad litem unless such person has an interest in the case which is inconsistent with the child’s interests. If the child’s custodial status is unknown, joint natural custody by both parents shall be presumed.(4) If no disinterested custodial parent or legal guardian is available, then another person known to the child may be appointed. However, if such person is not a noncustodial parent, grandparent, great-grandparent, or adult sibling of the child, then appointment may only occur after a hearing.(5) The appointment of a guardian ad litem may be sought by motion of:
(A) The person seeking appointment;(B) Another party to the action;(C) The child;(D) A custodial parent or legal guardian; or(E) The Department of Services for Children, Youth and their Families.(6) The motion shall set out:
(A) The child’s minority;(B) The identity of all persons holding parental or custodial rights or guardianship, and whether each is available for appointment or has an interest in the case; and(C) A proposed guardian ad litem or explanation why a guardian ad litem should be selected by the court.(7)(A) The motion may be served with the underlying petition and shall be served upon:
(i) All persons or entities holding parental or custodial rights or guardianship, and (ii) The child, if age 14 or older, but otherwise, upon the adult with whom the child resides; and (iii) All other parties to the action. (B) If the motion is served with the underlying petition, any written response must be filed and served within the time permitted for an answer as provided in Rule 12.(8)(A) If no appropriate guardian ad litem can be identified, the Court may:
(i) Appoint an attorney to represent the child;(ii) Permit the child to proceed on his or her own; or(iii) Dismiss the action.(B) Whether an attorney can adequately represent a child’s interests with or without a separately appointed guardian ad litem will be determined on a case by case basis. Attorney’s fees may be assessed against any or all parties.(9) In a Protection from Abuse action, a parent seeking protection of his or her own minor child need only seek to be appointed guardian ad litem of his or her child if the parent does not have a qualifying jurisdictional relationship with the respondent.(10) In any case affecting the interests of a child in which the Court finds that the appearing parties are not adequately representing the interests of the child, the Court may add the child as a party and appoint a guardian ad litem.(c) Incompetent persons as parties. — Whenever an incompetent person has a representative, such as a legal guardian, trustee, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the incompetent person. An incompetent person who does not have a duly appointed representative may sue or defend by a guardian ad litem.
(1) The appointment of a guardian ad litem may be done by the Court sua sponte or may be sought by motion of:
(A) The person seeking appointment;(B) Another party to the action;(C) The incompetent person; or(D) A legal guardian or person holding a Power of Attorney if the Power of Attorney authorizes the holder to bring suit or to prosecute or defend against a legal action.(2) The motion shall set out:
(A) The factual basis for believing the individual is incompetent;(B) The identity of all known persons or entities who have been appointed legal guardian, who hold a Power of Attorney, or who otherwise have the care of the incompetent person and whether each is available for appointment or has an interest in the case; and(C) A proposed guardian ad litem or explanation why a guardian ad litem should be selected by the court.(3)(A) The motion may be served with the underlying petition and shall be served upon:
(i) All known persons or entities who have been appointed legal guardian, who hold a Power of Attorney, or who otherwise have the care of the incompetent person, and (ii) The incompetent person, unless the condition of the incompetent person is such as to render service or notice useless; and (iii) All other parties to the action.(B) If the motion is served with the underlying petition, any written response must be filed and served within the time permitted for an answer as provided in Rule 12.(4)(A) If no appropriate guardian ad litem can be identified, the Court may:
(i) Appoint an attorney to represent the incompetent person; or (ii) Dismiss the action. (B) Whether an attorney can adequately represent an incompetent person’s interests with or without a separately appointed guardian ad litem will be determined on a case by case basis. Attorney’s fees may be assessed against any or all parties.
Del. Fam. Ct. R. Civ. P. 17
Amended July 18, 2018, effective December 1, 2018.
