Rule 35 – Physical, Mental and other Examination of Persons

May 15, 2021 | Delaware, Family Law

(a) Order for examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the Court in which the action is pending may order the party to submit to a physical or mental examination by a psychologist suitably licensed or certified examiner or to produce for examination the person in the party’s custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

(b) Report of examiner.

(1) If requested by the party against whom an order is made under Rule 35(a) or the person examined subject to such restrictions or conditions as the Court may impose, the party causing the examination to be made shall deliver to the party against whom an order is made, a copy of a detailed written report of the examiner setting out the findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows that such party is unable to obtain it. The Court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if an examiner fails or refuses to make a report the Court may exclude the examiner’s testimony if offered at the trial.

(2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege the party may have in that action or any other involving the same controversy regarding the testimony of every other person who has examined or may thereafter examine the party in respect of the same mental or physical condition.

(3) This paragraph applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This paragraph does not preclude discovery of a report of an examiner or the taking of a deposition of the examiner in accordance with the provisions of any other rule.

(c) Examination fees. The Court may, after affording an opportunity to be heard to either an examined person or any person legally liable for the support of the person examined, assess against such person or any person legally liable for the support of the person examined, the costs, or any portion thereof, of such examination in any case where it has been ordered by the Court. Assessment of examination costs may include costs of any psychological or psychiatric evaluations and medical or other examinations including but not limited to blood tests conducted.

Del. Fam. Ct. R. Civ. P. 35