Guardian ad litem? What’s that? Kids having their own attorneys? Really? To answer those questions in reverse, yes, yes, and I’ll tell you in a minute.
In child protection and high conflict divorce cases, someone is often appointed to represent the interests of a minor child in the court proceedings. Sometimes an attorney is appointed to represent the child. Other times a guardian ad litem may be appointed. Sometimes both representatives are appointed. But what is the difference?
If you don’t know, you are not alone. Even judges and attorneys can get confused at times. The fact is, the roles are defined differently from jurisdiction to jurisdiction, and (usually in divorce/custody matters) in some jurisdictions may not be defined at all.
Despite the confusion, there are some clear differences. Let’s look at each role, starting with the most familiar — the attorney.
When most people use the term “attorney” they are really referring to an “attorney at law” (aka “lawyer”). Black’s Law Dictionary, the standard in the legal profession, defines an attorney at law as:
Person admitted to practice law in his respective state and authorized to perform both civil and criminal legal functions for clients, including drafting of legal documents, giving of legal advice, and representing such before courts, administrative agencies, boards, etc.
In the court context, an attorney for a child represents the child’s interests – what the child wants. When we are talking about custody, that means that the attorney explains the law and the legal process — in an age appropriate manner — to the child, learns the child’s wishes, then advocates the child’s position to the court. Essentially, the attorney represents the child the same way she represents an adult. The child is the client and the attorney tries to win the case for the child. The child’s position may or may not match up with the parents’. The attorney files court documents, appears in hearings, and can call or examine witnesses.
“That’s nice,” you say, “but what if the child is too young to express his or her wishes?” Good question. This is where it gets murky, and the attorney’s job tends to look like that of a guardian ad litem (which I’ll tell you about in just a minute). According to the American Bar Association, if the child is unable to express his or her wishes, the attorney’s duty is to represent the best interests if the child. In other words, the attorney must investigate and assess what she believes would be the best outcome for the child and argue why the court should adopt that point of view.
Guardian ad Litem
This brings us to the guardian ad litem. Again quoting Black’s:
Guardian. A person lawfully invested with the power, and charged with the duty, of taking care of the person and managing the property and rights of another person, who, for defect of age, understanding, or self-control, is considered incapable of administering his own affairs. One who legally has responsibility for the care and management of the person, or the estate, or both , of a child during its minority.
A guardian ad litem is a special guardian appointed by the court in which a particular litigation is pending to represent an infant, ward or unborn person in that particular litigation, and the status of guardian ad litem exists only in that specific litigation in which the appointment occurs.
Huh? Let’s make this simple. In the child protection and child custody contexts, the guardian ad litem is someone appointed by the court to represent the child’s best interests in that particular case. As mentioned earlier the specific role of the guardian ad litem varies from state to state; however, there are some common characteristics. The guardian ad litem:
- investigates the family situation
- exercises some level of professional judgment
- formulates an opinion (hopefully objective) about what would be best for the child
- makes recommendations to the court, based on the investigation
- advocates for these recommendations on behalf of the child
- is involved throughout the entire proceeding.
- does not have to follow the wishes of the child
Depending on the jurisdiction, the guardian ad litem may serve more of an investigative and advisory function, or may be made a party to the case and actively participate with appropriate legal representation.
While there are distinct differences, both roles involve appointing someone to watch out for the child when the parents are incapable or unwilling to do so.