What Does a Guardian Do in Family Law Cases?
Understanding how legal guardianship pertains to family law
on January 18, 2023
A guardianship is a legal relationship in which an adult person is legally authorized to represent the best interests of someone else.
There are several types of legal guardianships:
- Elder guardianship. If an older adult becomes incapacitated and unable to handle their personal and/or financial affairs, family members can petition the court to appoint a guardian, who is authorized to make decisions on the individual’s behalf. A guardian will only be needed if the incapacitated individual did not already appoint a power of attorney (POA). Read this article for more information 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.
In family law cases, another kind of guardianship is especially important: the guardian ad litem, who is appointed through a court order to represent the best interests of 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 New Jersey family law attorney Joseph P. Cadicina. 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,” he continues. “They are tasked with investigating the situation and representing 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 see to 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.”
While the child’s wishes are important, the guardian ad litem’s duty is to ensure the child’s best interests are met, even if that conflicts with the child’s preference. 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.
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 their recommendations, it often will; or, 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. That being said, 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 is settled, the guardian ad litem no longer has legal authority over the child’s interests.
How a Guardian Ad Litem is Appointed and Paid
Guardians ad litem are appointed by the presiding family court judge.
“The court utilizes individuals who have significant experience in family law,” says Cadicina. “Often, the individuals 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, the appointment “is often done 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 for the fees equally, but the fee could be reallocated later on.”
Questions for an Attorney
Many family law attorneys provide free consultations for potential clients; initial consultations allow you to get legal advice and consider if you need legal help. Sometimes, consultation fees are counted toward future legal services if you do end up hiring an attorney, and you can ask about pricing upfront.
If a guardian ad litem does get appointed for your child in a family court proceeding, ask an attorney informed questions such as:
- What does a guardian ad litem do?
- How is a guardian ad litem appointed?
- Who pays for the guardian ad litem’s fees?
- Will you, as my attorney, communicate with the guardian ad litem?
- Can the guardian ad litem tell me what to do?
- Will I or my child have to interview with the guardian ad litem?
Once you have met with a lawyer and gotten your questions answered, you can begin an attorney-client relationship. Look for a family law attorney in the Super Lawyers directory for legal help.