THE BLOG

An Introduction to the Guardian Ad Litem

03/12/2015 10:51 am ET | Updated May 12, 2015

A guardian ad litem ("for the lawsuit") is appointed in accordance with state law to represent the best interests of a child, or an incompetent adult, in legal matters generally. An appointment perhaps occurs with most numeric frequently in situations involving child custody, or termination of parental rights. This comment provides only a brief and limited educational overview of the guardian ad litem. Consult an experienced attorney in all situations involving family law, divorce, child custody, and mental competency.

While the concept of a guardian ad litem is historic, a 1967 decision of the U.S. Supreme Court determined that children have a right to legal counsel in juvenile delinquency proceedings (In re Gault). This decision and the spread of no-fault divorce in the 1970s emphasized the need for a guardian ad litem in many legal situations.

A guardian ad litem may be required, beyond family law matters, when settling a child's personal injury case, in an inheritance proceeding, or when creating sports and entertainment contracts involving minors. These are a few of the many situations requiring a guardian ad litem. The guardian ad litem frequently does not have physical custody of the child and the child's property, although this might occur in mental competency cases. Rather, the guardian ad litem is typically viewed as an impartial advocate on behalf of the child or adult, as the case may be. A judge frequently has significant discretion in selecting a guardian ad litem.

The guardian ad litem has broad powers including the right to interview the child or adult in question, investigative powers including access to medical, school, and psychological records, the right to attend legal proceedings, and ultimately the right and requirement to make a recommendation concerning the best interest of the individual in question. While local family law court practices vary, frequently the recommendation of the guardian ad litem significantly influences out-of-court settlements or judicial actions.

Since the child has limited rights as a minor and disputed custody cases are by nature adversarial, the need for a guardian ad litem is apparent. Most state statutes grant the guardian ad litem immunity from lawsuits unless she or he acts with gross negligence or malice. Ad litem fee arrangements vary by state with a guardian ad litem being under contract, or paid ad hoc, and some act as uncompensated volunteers. Growing awareness of domestic violence, and the special family dynamics in such tragic situations, reinforces the need for a skilled guardian ad litem.

A guardian ad litem should be somewhat "thick skinned" and anticipate criticism for doing too little (from the side that lost custody or in the tragic event of injury to a child), or doing too much (being called a snooping bureaucrat or in engaging in unnecessary activity to "pad" or increase her or his fees). Attorneys will sometimes scapegoat the guardian ad litem for an adverse judicial result.

In any event, a potential guardian ad litem needs to know at a minimum the following:

1. Are you adequately trained and do you know what expertise you lack? Are you able to effectively communicate cross-culturally, with children, and with emotionally or mentally disturbed adults? Are your communications legally protected from disclosure by confidentiality standards?

2. What financial and professional resources, if any, are available to you? Is there funding, for example, to conduct investigations, to obtain expert consultation, and to defend against a potential lawsuit? Do you have or need malpractice insurance?

3. Do you have the temperament to deal with highly emotional and stressed individuals and address tragic situations in a professional manner?

4. If you are internally fearful and anxious, are you able to function professionally, de-stress, and remove unpleasant events from your active memory?

5. Do you understand the required time commitments? Are you a sufficiently detail and deadline sensitive person?

In recent years state legislatures have attempted to standardize and somewhat professionalize the role of the guardian ad litem. State offices and advocacy training are common. Critics of the historic guardian ad litem system noted that local judges had a narrow list of favorite appointees (who received fees for their services), that investigations by guardians ad litem tended to be perfunctory and relied upon what would be inadmissible hearsay, and that guardian ad litem opinions were tainted by unscientific analysis and unstated biases.

Occasionally a federal or state grand jury may even today investigate fees and payments authorized by judges. A guardian ad litem may be required in many circumstances to provide a detailed and verifiable accounting of her or his time and charges. Rarely is a guardian ad litem removed for cause.

Many commentators and task forces, as well as professional and advocacy organizations, have suggested uniform national standards and certification for guardians ad litem. While state legislatures are acting and local courts and advocacy organizations are producing guardian ad litem manuals, even greater legislative diligence is appropriate. The guardian ad litem is an important and sensitive part of our legal system.