The U.S. has laws designed to protect children, who are presumed to lack well-formed judgment. In divorce cases that go to court, a parent cannot represent a child’s interests, and a parent’s interests may even conflict with the best interests of the child. In these cases the court will appoint a “guardian ad litem”(GAL) to act in the child’s best interests during the trial and provide reasoned advice from an independent individual who does not owe allegiance to either party. (Ad litem is a Latin term meaning “for the lawsuit.”)
Some states require that GALs be attorneys; in other states, lay people are eligible to volunteer as GALs, subject to GAL training and certification. Note: a GAL is appointed solely for the court proceedings, and is not a “guardian” appointed to manage a child’s interests in general. The appointed GAL participates, as appropriate, in pre-trial conferences, mediation and negotiations. The guardian has authority to conduct an independent investigation to ascertain the facts of the case, to investigate the child’s family background, and to meet and interview the child and the parents face-to-face. In court, GALs can cross-examine witnesses called by the parents’ attorneys and can call their own witnesses.
Other GAL duties may include:
- Advising the child, in terms the child can understand, of the nature of the court process, the child’s rights, the role of the GAL, and the potential outcome of the legal action.
- File appropriate petitions, motions, pleadings, briefs, and appeals on behalf of the child and ensure the child is represented by a guardian ad litem in any appeal
- Advise the child, in terms the child can understand, of the court’s decision and its consequences for the child and others in the child’s life.
In some states, GALs make recommendations to the judge as to how they think child custody should be decided in the child’s best interests—not necessarily according to what the child prefers, if he or she is old enough to have an opinion. Usually the child does not appear in court, but if the child is to testify, the GAL will help prepare the child when necessary and appropriate.
There is no attorney client privilege between the GAL and the parent, so nothing that is said is privileged and it can be shared.
The seasoned family law and divorce lawyers at the McGrath Law Firm, founded by attorney Peter McGrath, will walk you through every step of the challenging divorce process to address your concerns and achieve your goals as efficiently as possible. From spousal support, child support, fault, and equitable division of property and debt to valuations, pre-nuptial agreements, annulments, and restraining orders, the experienced attorneys at McGrath Law Firm have a successful track record in all aspects of divorce law. Call us to schedule your consultation at (800) 283-1380.