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Do You Need A Guardian Ad Litem?

Posted by: In: Newsletter Archive 30 Sep 2016 Comments: 0

BY: LORIE D. FOWLKE

(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

         The general public is becoming more aware of the term Guardian Ad Litem.  Lawyers still use many Latin words in their legal terminology and this is one of them.  The word itself means a guardian for the lawsuit or litigation.  In legal circles it refers to a guardian for someone who is a child or incompetent, and generally is only for the duration of the lawsuit.  In Utah a Guardian Ad Litem must be a lawyer, though that is not true in all states.  In family law, the court may appoint an attorney to be a Guardian Ad Litem to represent the best interests of the children.  When, if, and what type of guardian will be appointed depends on several factors I will discuss here.

If you are in juvenile court, in an abuse or neglect proceeding, the court will automatically appoint someone to be the Guardian Ad Litem, or attorney representing the child.  This Guardian usually comes from the State Office of Guardian Ad Litem and is paid for by the State.  In juvenile court, parental rights are at stake. Because parental rights are protected by the Constitution, parents are offered a free attorney.  However, because parents’ rights and children’s rights may conflict, the court appoints someone to also represent the children. By law, the Guardian’s responsibility in this forum, is to tell the court what the child wants, but also to conduct an independent investigation and tell the court what the Guardian believes is in the best interests of the child.  Those two things may or may not be the same thing.

         Guardian Ad Litems are appearing more frequently in district court, in divorce cases.  The statute requires that the court shall appoint a Guardian Ad Litem whenever there is an allegation of abuse of a child.  If the court believes that allegation of abuse is credible, then the court will appoint the State Office of Guardian Ad Litem to basically do the same type of thing a Guardian would do in juvenile court, i.e. report to the court on the condition of the children, but also make a separate investigation and make a recommendation to the court.  Though the State pays for this Guardian initially, often the State’s Guardian Ad Litem will file a motion at the end of the case, asking the court to order one or both of the parents to repay the State for the fees incurred by the Guardian.  The Court will usually grant this motion and then the parents are ordered to pay for the legal fees of the Guardian.

Sometimes, parents agree or will ask the court to appoint a private Guardian Ad Litem.  This may be because of allegations made by one or both parents and the parties decide they’d like to have an independent investigation and recommendation, focused on the best interests of the child, but the Court, for whatever reason, would not appoint a State Guardian Ad Litem.  There is a state roster that is kept at the State Guardian Ad Litem Office, of private attorneys who are interested and have received special training in this type of work.  When someone requests a private Guardian Ad Litem, they are referred to this roster and an attorney is assigned. As part of that order, the Court will order one or both parents to pay for the Guardian’s legal services initially, with final determination of payment to be made at the end of the case.

There are various types of scenarios where parents may request a private guardian. I do this type of work, and have been appointed in cases where one parent believes the other parent is mentally deficient, abusing medication, or sexually abusing the child, or when both parents claim the other parent is suicidal and a danger to the child.  This appointment is not always for the duration of the whole case, but is supposed to be only for a specified period of time, up to one year.  The Guardian conducts her investigation and makes the report/recommendations.  Then, the parties often settle, depending on what else is in dispute.  If the parents do not settle their case, it can become a long, expensive, and difficult proposition.  The Guardian becomes an added legal expense and often, the parent who is not getting what they want from the Guardian, becomes upset and starts alleging the Guardian is not doing their job well.  The State Office handles these types of complaints.

Working as a Guardian Ad Litem is rewarding because your clients are usually the “good guys.”  Children deserve to be heard and their view should be considered.  However, the work can also be thankless, stressful, and a financial drain, when parents do not pay the bill, claim you are biased, and/or file complaints with the State Office to which you have to take the time to respond.

If your case involves children who are at risk, you may want to consider whether retaining a Guardian Ad Litem would be appropriate.  There are pros and cons to having one appointed and you should seek competent legal advice in making that determination.

 

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