Amended and supplemental pleadings

(a) Amendments. A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is required or permitted and the action has not been placed upon the trial calendar, that party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party’s pleading only by leave of Court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be longer, unless the Court otherwise orders. (aa) Form of amendments. A party serving an amended pleading shall indicate plainly in the amended pleading in what respect the amendment differs from the pleading which it amends. (b) Amendments to conform to the evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the Court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the Court that the admission of such evidence would prejudice the party in maintaining the action or defense upon the merits. The Court may grant a continuance to enable the objecting party to meet such evidence. (c) Relation back of amendments. An amendment of a pleading relates back to the date of the original pleading when (1) relation back is permitted by the laws that provide the statute of limitations applicable to the action, or (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provisions of subdivision (2) of this paragraph are satisfied and, within the period provided by law for commencing the action against the party, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits; and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. (d) Supplemental pleadings. Upon motion of a party the Court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. If the Court deems it advisable that the adverse party plead thereto, it shall so order, specifying the time therefor. History. Amended, effective Sept. 3, 1996. Rule 16. Required reports. (a) Child Support Financial Disclosure Report. (1) Prior to a mediation conference on an action for support or for modification of an existing order, each party shall complete a written report in the form approved by the Court to be known as a Child Support Financial Disclosure Report, attaching thereto such documents as may be required by the instructions accompanying the Report. Each party shall bring a completed Child Support Financial Disclosure Report to the mediation conference where the information contained therein shall be notarized by the parties, with misrepresentations subject to appropriate sanctions. (2) In any matter in which a mediation conference does not occur, each party must complete and exchange with the opposing party or attorney a written report in the form approved by the Court to be known as a Child Support Financial Disclosure Report at least 7 calendar days prior to the first court appearance. Each party shall bring a copy of the completed report to their first court appearance where the information contained therein shall be notarized with misrepresentations subject to appropriate sanctions. (3) The requirement for filing the Child Support Financial Disclosure Report may be waived by the Court upon written application by either or both parties for good cause shown, but only under such conditions as the Court may impose. (4) Failure of a party to submit the Child Support Disclosure Report with attachments or to exchange with the opposing party shall subject the offending party to appropriate sanctions. (b) Custody, visitation and guardianship disclosure report. (1) Prior to a mediation conference on an action for custody, visitation or guardianship, each party shall complete a written report in the form approved by the Court to be known as a Custody, Visitation, and Guardianship Disclosure Report, attaching thereto such documents as may be required by the instructions accompanying the report. Unless already submitted to the Court in advance, each party shall bring a completed report to the mediation conference where the information contained therein shall be notarized with misrepresentations or omissions subject to appropriate sanctions. (2) In any matter where a mediation conference does not occur, each party must complete and exchange with the opposing party or attorney a Custody, Visitation, and Guardianship Disclosure Report at least 7 calendar days prior to the first court appearance. The Custody, Visitation, and Guardianship Disclosure Report must also be filed with the Court at least 7 calendar days prior to the first court appearance. The information contained in the report shall be notarized at the first court appearance with misrepresentations subject to appropriate sanctions. (3) The requirement for filing the Custody, Visitation and Guardianship Disclosure Report may be waived by the Court upon written application by either or both parties for good cause shown, but only under such conditions as the Court may impose. (4) Failure of a party to submit the Custody, Visitation and Guardianship Disclosure Report shall subject the offending party to appropriate sanctions. (c) Ancillary Financial Disclosure Report. (1) After the entry of a divorce decree, a petitioner requesting ancillary relief shall complete a written report in the form approved by the Court known as an Ancillary Financial Disclosure Report and shall forward an original notarized copy to the respondent or attorney for respondent within 30 days of the granting of the final decree of divorce and advise the Court in writing that the report has been sent to respondent or respondent’s attorney. Respondent shall then complete the form filing the original notarized document with the Court and forwarding a copy to the petitioner or petitioner’s attorney within 30 days of receipt. (2) Where a petitioner does not seek ancillary relief, a respondent requesting such relief shall complete the Ancillary Financial Disclosure Report and forward an original notarized copy to petitioner or petitioner’s attorney within 30 days of the granting of the final decree of divorce and advise the Court in writing that the report has been sent to petitioner or petitioner’s attorney. Petitioner shall then complete the form filing the original notarized document with the Court and forwarding a copy to respondent or respondent’s attorney within 30 days of receipt. (3) The requirement for filing the Ancillary Financial Disclosure Report may be waived by the Court upon written application by either or both parties for good cause shown, but only under such conditions as the Court may impose. (4) Failure of a party to submit the Ancillary Financial Disclosure Report shall subject the offending party to appropriate sanctions. (d) Ancillary Pretrial Stipulation. (1) Unless there exists a no contact order between unrepresented parties, at least 30 days prior to a pretrial conference, the parties shall meet or confer in an effort to resolve all outstanding issues. This requirement may be waived by the Court upon motion by either or both parties for good cause shown. (2) If the parties are unable to reach an agreement regarding their ancillary matters, an Ancillary Pretrial Stipulation shall be completed in the following manner: i. The petitioner seeking ancillary relief shall complete the Ancillary Pretrial Stipulation and forward an original notarized copy to the respondent or the respondent’s attorney at least 20 days prior to the pretrial conference. ii. The respondent shall then complete the document, file the original document with the Court and forward a copy to the petitioner 7 calendar days prior to the pretrial conference. Each party’s respective submissions shall be contained on one form. iii. Petitioner after receiving from the respondent the completed form shall be entitled to supplement or file with the Court any objections. The objections or supplement should be filed prior to or at the pretrial conference. A copy of any objections shall also be provided to the respondent or respondent’s attorney. (3) If the petitioner fails to complete the Ancillary Pretrial Stipulation, the respondent must complete his or her portion of the Ancillary Pretrial Stipulation and file it with the Court at least 7 calendar days prior to the pretrial conference. (4) If there exists a no contact order between unrepresented parties whether in a criminal proceeding or a Protection From Abuse Order, each party shall complete his or her portion of the Ancillary Pretrial Stipulation and file it with the Court at least 20 calendar days prior to the pretrial conference. The Court will forward a copy of the Ancillary Pretrial Stipulation to the opposing party. (5) The requirement for filing the Ancillary Pretrial Stipulation may be waived by the Court upon motion by either or both parties for good cause shown, but only under such conditions as the Court may impose. (6) Failure to submit the Ancillary Pretrial Stipulation shall be subject to appropriate sanctions. (e) Failure to comply. Failure of either party to comply with the requirements of this Rule may result in the imposition of appropriate sanctions which may include but are not limited to the following: the Court’s sua sponte continuing the proceeding, acceptance of properly submitted information to the exclusion of contrary evidence by the party in non-compliance; assessment of attorney’s fees against the non-complying party or default judgment for the relief requested. Failure of both parties to comply with this Rule as it relates to the Ancillary Financial Disclosure Report may result in dismissal, with prejudice, of all applications for ancillary relief. As it relates to submissions required by the Ancillary Pretrial Stipulation, failure of a party to file may result in the adoption of the findings, conclusions and order submitted by the other party as the decision and order of the Court or cancellation of the ancillary hearing. History. Added, Oct. 5, 2017, effective Jan. 1, 2018. Rule 16.1. Mediation. (a) Support proceedings. (1) In all proceedings requesting relief pursuant to Chapters 5 and 8 of Title 13 of the Delaware Code, including actions for modification of existing orders, a mediation conference(s) with the parties shall be held by a Court staff mediator to identify the specific areas at issue and to attempt amicable settlement of all unresolved issues to avoid the necessity of a hearing or to narrow the issues to be decided at a hearing. Petitions filed pursuant to the Uniform Interstate Family Support Act shall not be eligible for mediation. Additionally: i. Telephonic participation may be allowed for any party residing more than 100 miles from the courthouse or for good cause shown upon request, conditional upon compliance with subsection (a)(6) of this Rule. ii. Unless otherwise provided by statute or rule, no trial in the action shall occur until the completion of the mediation process unless the Court, upon the application of a party, application of the mediator or upon its own motion, orders the proceeding referred for scheduling, in the first instance, before a Judge or Commissioner. iii. The scheduling of a trial initially before a Judge shall be in accordance with Rule 300(c). (2)(A) If the mediation process fails to produce a full settlement, unless both parties agree otherwise, the parties may be taken before a Commissioner for an evidentiary hearing on the same day, if appropriate as determined by the Commissioner. Without assessing evidentiary weight, the Court may review the notes and calculations made by the mediator in determining areas of agreement and dispute. (B) If an evidentiary hearing is not held pursuant to subparagraph (2)(A) and if the matter is not resolved at the mediation conference by a permanent or interim agreement of the parties, then, absent good cause otherwise to be stated on the mediator’s report, the mediator shall prepare an interim order based upon the documentation provided and the Delaware Child Support Formula, which upon review and adjustment by the Court shall issue promptly and may include such order for discovery as the Court deems appropriate. (3) A child support enforcement action alleging contempt of court shall be scheduled for a mediation conference only if there have been no previous enforcement orders entered, other than dismissals, in the name of the same petitioner against the same respondent. (4) Petitions to establish medical arrears or seeking reimbursement of shared incidental expenses, other than in Uniform Interstate Family Support Act cases, shall be scheduled for mediation first in every instance. (5) Family Court mediation conferences shall be prohibited in any proceeding requesting relief in the form of support where one of the parties has been found by a court to have committed an act of domestic violence against the other party or if either party has been ordered to stay away or have no contact with the other party, unless a victim of domestic violence who is represented by counsel requests such mediation. (6) Requests to appear telephonically or for continuances. (A) All requests to appear telephonically or for continuances of support mediation conferences shall be made in a timely manner and in writing to the Court staff mediator assigned to conduct the conference. A copy of any such request shall be provided to the opposing party or, if represented, the opposing attorney. The written request shall be made using the Court approved form and shall contain: (i) A statement of the original filing date of the complaint; (ii) The position of opposing counsel on the request or, if there is no opposing counsel, the position of the opposing party; (iii) The number of times that the case has been scheduled for mediation conference; and (iv) The reason(s) why the request is being made, with any supporting documentation. (B) When an emergency or unforeseeable situation prevents full compliance with this subsection, the Court staff mediator assigned to conduct the conference may consider an oral or incomplete request for continuance and may require subsequent submission of appropriate correspondence or documentation. (C) A Court staff mediator granting a continuance shall make a written entry in the Court record of the reason for the continuance. (D) Where the parties intend to submit a stipulation resolving the issues, the executed stipulation must be received by the Court prior to the scheduled mediation conference and be in accord with the requirements of Rule 500(a) or the parties shall appear for the mediation conference. The Court shall not grant any request for a continuance on the basis that a stipulation is forthcoming. Failure to appear for a mediation conference under these circumstances may result in a dismissal of the petition or default judgment. (7) At any hearing conducted under this rule, the Court may consider representations of income for each parent reported by employers to the Department of Labor. (b) Custody, visitation and guardianship proceedings; mediation. (1) Unless service has been made through publication for any respondent, in all custody, visitation and guardianship proceedings seeking initial, modification or rescission decrees, a mediation conference(s) with the parties shall be held by a Court staff mediator to identify the specific areas at issue and to attempt amicable settlement of all unresolved issues or, in the alternative, to limit those issues which must be submitted to the Court for determination. Attorneys of the parties may attend and participate in the conference(s) at their election. Additionally: (i) Telephonic participation may be allowed for any party residing more than 100 miles from the courthouse or for good cause shown upon request, conditional upon compliance with subsection (b)(2)(A) of this Rule. (ii) No trial shall be scheduled before a Judge until the completion of the mediation process unless the Court, upon the application of either party or the Court staff mediator or upon its own motion, orders the proceeding referred to judicial scheduling. (2) Requests to appear telephonically or for continuances. (A) All requests to appear telephonically and for continuances of custody, visitation and guardianship mediation conferences shall be made in a timely manner and in writing to the Court staff mediator assigned to conduct the conference. A copy of any such request shall be provided to the opposing party or, if represented, the opposing attorney. All requests for a continuance shall be made using the Court approved form and shall contain: (i) A statement of the original filing date of the complaint; (ii) The position of opposing counsel on the request or, if there is no opposing counsel, the position of the opposing party; (iii) The number of times that the case has been scheduled for mediation conference; and (iv) The reason(s) why the request is being made, with any supporting documentation. (B) When an emergency or unforeseeable situation prevents full compliance with this subsection, the Court staff mediator assigned to conduct the conference may consider an oral or incomplete request for continuance and may require subsequent submission of appropriate correspondence or documentation. (C) A Court staff mediator granting a continuance shall make a written entry in the Court record of the reason for the continuance. (D) Where the parties intend to submit a stipulation resolving the issues, the executed stipulation must be received by the Court prior to the scheduled mediation conference or the parties shall appear for the mediation conference. The Court shall not grant any request for a continuance on the basis that a stipulation is forthcoming. Failure to appear for a mediation conference under these circumstances may result in a dismissal of the petition or default judgment. (3) Prior to a mediation conference, the mediator shall review the parties’ criminal and Protection from Abuse histories to confirm that the case should not bypass mediation and to enhance his or her general familiarity with the parties. (4) If the matter is not resolved at the mediation conference by a permanent or interim agreement of the parties, the mediator may recommend an interim contact schedule based on information received at the mediation conference and in the best interest of the child(ren). The mediator’s recommendation shall be reviewed by a judicial officer and if the recommendation is approved, it shall become an interim order, without prejudice to any party. In the event that the mediator’s recommendation is not approved, the Court shall enter an appropriate interim order. (5) If the matter is resolved at the mediation conference in the form of a proposed consent agreement, a judicial officer will review the proposed consent agreement as well as the criminal histories of the parties and the occupants of each household in which each child will reside or visit. (6) The Court may decline to approve any proposed consent or interim order, including stipulations submitted pursuant to subsection (b)(2)(D), for any relevant reason but shall decline to approve any such order if: (A) Any person residing in the household of any party in which the child will reside or visit is a registered sex offender or a perpetrator of domestic violence as those terms are defined in Chapter 7A of Title 13; or (B) Any person in the household has been convicted or adjudicated delinquent of domestic violence against the child or any person residing in a household wherein the child will reside or visit; or (C) The petition should have been otherwise ineligible for a mediation conference pursuant to subsection (b)(7) of this Rule. (D) The impediments recited in subsections (A) and (B) may be disregarded if there exists a written court order wherein a Judge specifically considered the underlying circumstances and, nevertheless, found placement, visitation or contact to be appropriate. (E) If the Court declines to approve the proposed consent agreement or interim order, either party may request a hearing on the proposed consent agreement or interim order. The Court shall address the matter at or before the Case Management Conference. (7) Family Court mediation conferences shall be prohibited in any proceeding where one of the parties has been found by a court to have committed an act of domestic violence against the other party or if one party has been ordered to stay away or have no contact with another party, unless a victim of domestic violence who is represented by counsel requests such mediation. (c) Failure to comply. Failure of both parties to comply with this Rule may result in dismissal, with prejudice, of the matter before the Court. Non-compliance by either party, including a failure to complete a report required pursuant to Rule 16, may result in sanctions including, but not limited to, dismissal of the petition, entry of a default judgment, attorney’s fees, and being prohibited from accessing the other side’s documents or from taking a position at trial. (d) A screening tool may be used to determine whether mediation can safely proceed, the appropriate mediation method, and any necessary safety precautions. (1) The screening responses and detailed results are confidential, undiscoverable, and inadmissible. (2) However, screening responses that threaten imminent harm, admit the commission of a crime, or reveal child abuse shall constitute an exception to confidentiality and may be reported to appropriate authorities. (3) Except as allowed by subsection (d)(2), all screening responses shall be destroyed upon conclusion of the underlying petition. (4) The screening results may be securely retained for future use but will be stored separately from case files. (5) The screening can play no part in the recommendation of an interim order under Rule 16.1(b)(4). History. Added, Oct. 5, 2017, effective Jan. 1, 2018; amended Dec. 6, 2022, effective Feb. 1, 2023; Feb. 16, 2023, effective May 1, 2023.