What Does a Guardian Ad Litem Do?

Guardianship is a legal relationship in which an adult is authorized to represent the best interests of a person who can’t represent themselves. In family law cases, one kind of guardianship is especially important: The guardian ad litem. The court appoints a guardian ad litem to represent the best interests of minor children in disputes such as child custody, divorce, or the termination of parental rights.

“Every state has some form of a guardian ad litem,” says Joseph P. Cadicina, a family law attorney at Cadacina Law in Morristown, New Jersey. “[The responsibilities] vary from state to state. For example, in New Jersey, a guardian ad litem is appointed on behalf of a minor child or an adult who has some inability to fully participate in a divorce proceeding. Most guardians ad litem are attorneys. They investigate the situation and represent the person’s best interests.” 

What Is the Role of a Guardian Ad Litem? 

Minor children (in most states, individuals under 18 years of age) lack the full legal capacity of adults, meaning they cannot represent themselves in legal action. Instead, an adult must represent their best interests and legal rights in court. 

Often, the adults who oversee the child’s best interests are the child’s parents. However, sometimes, parents are unable to fulfill this role. In the context of child custody cases or in allegations of abuse by a parent, a third party is needed to act on behalf of the child in court.  

Fundamentally, the role of a court-appointed guardian ad litem is to represent the best interests of the child in a legal action involving the parents. The guardian ad litem is the child’s legal voice in court. It’s important to note that the guardian ad litem is not the child’s lawyer in the sense of simply advocating for what the child wants. As Cadicina notes, a guardian ad litem’s role “is not necessarily legal representation.”  

The child’s wishes are important, but the guardian ad litem’s duty is to ensure the child’s best interests are met even if that conflicts with the child’s preferences. For example, a child may prefer to be with one parent, but that parent’s living situation is unsafe for the child, or the parent’s plan would not provide for the child’s needs or well-being.  

If what the child wants and what the guardian ad litem believes is best does not align, the guardian ad litem can explain the discrepancy to the court to resolve the issue. Ultimately, the guardian ad litem is present “to assist the person and the court in the process,” Cadicina says. 

Don’t Confuse a Guardian Ad Litem With Other Types of Guardianship

There are a few types of legal guardianships: 

• Elder guardianship. If an older adult becomes incapacitated and unable to make decision about their personal or financial affairs, family members can petition the court to appoint a guardian who is authorized to make decisions on the person’s behalf. A guardian will only be needed if the incapacitated individual did not already appoint a power of attorney (POA). Learn more about elderly guardianships. 
• Testamentary guardianship. If a person has children under 18 years of age, they can appoint a guardian in their last will and testament. If the person dies before their children reach adulthood, the appointed guardian is responsible for the children’s welfare and financial affairs until they turn 18. 
• Guardianship of minors. If a parent is unable to take care of their child, a guardian can be appointed to see that the child’s welfare and daily needs are taken care of.  

Responsibilities of the Guardian Ad Litem 

A guardian ad litem may take on several responsibilities. Generally, they investigate matters related to the case, and report to the court. A guardian ad litem may do one or all of the following: 

• Serve as a fact-finder for evidence related to parental abuse allegations 
• Investigate information pertaining to the case and report to the court 
• Report information obtained from interviewing the child to the court 
• Look into inconsistent or contradictory statements by parents related to parenting practices or abuse and report their findings to the court. 

The guardian ad litem can often gather information that would be difficult or impractical for the court to obtain. For example, testimony from the child could make a big difference in a child custody case. But having the child testify in court is often not in the child’s interest. To get the child’s testimony, the guardian ad litem can speak with the child in an appropriate setting and then report their findings to the court.  

Based on their investigations and fact-finding, the guardian ad litem can then make informed recommendations about child custody, parenting plans, or the termination of parental rights. While the court is not bound to follow the guardian ad litem’s recommendations, it often will. At the very least, it will take the recommendations into consideration in ruling on a family law matter. 

How Long Does the Guardian Ad Litem’s Authority Last? 

Every type of legal guardianship is temporary. However, the duration of some guardianships is more definite than others. For example, guardianship of a minor ends when the child becomes an adult — typically, 18 years old. By contrast, elder guardianships are more open-ended, ceasing whenever the individual dies.  

A guardian ad litem’s authority over a child only lasts as long as the court proceeding. Once the dispute settles, the guardian ad litem no longer has legal authority over the child’s interests. 

How a Guardian Ad Litem Gets Appointed and Paid 

The presiding family court judge appoints a guardians ad litem. “The court utilizes people who have significant experience in family law,” says Cadicina. “Often, appointees are involved with the local state bar association.” 

Judges don’t necessarily select individuals from a set list of attorneys to serve as guardian ad litem, Cadicina adds. “Instead, they often appoint on a case-by-case basis, and the judge simply follows the court rules [for appointment].”

Similarly, courts can take different approaches when it comes to paying a guardian ad litem’s fees. “Generally, the court allocates fees based on the parents’ financial ability,” Cadicina says. “Courts often order parties to pay fees equally, but could reallocate fees later on.” 

Find a Family Law Attorney for Legal Help

If you have questions about the role or appointment of a guardian ad litem, speak with a family law attorney for legal help.