Many people in the United States have general ideas of what is involved in divorce proceedings, even when they personally have not been involved in such cases themselves. Television shows and films regularly feature divorce cases and marriage dissolution proceedings as part of their productions. With that said, a most Americans likely are unfamiliar with a guardian ad litem and what such a person does in a divorce case.
There are three primary points of consideration when it comes to having a basic understanding of the functions of a guardian ad litem in a divorce case:
- Definition of guardian ad litem
- Types of domestic court or family court cases in which a guardian ad litem is appointed
- Guardian ad litem and child custody and parenting time issues
Definition of a Guardian Ad Litem
The training and functions of individuals appointed by courts to serve as a guardian ad litem are based on the provisions of the laws of a particular state. There can be some fairly significant differences in the laws from one state to another.
With that said, the basic definition used across the country is a person appointed by a court to watch over or protect an individual during a judicial proceeding. At first blush, this may sound like the duties of an attorney representing a party to a case. In fact, in many jurisdictions, a guardian ad litem has a law degree and additional specialized training.
A guardian ad litem is appointed to protect interests of a party or subject of a judicial proceeding that lacks capacity his or her self. These can include individuals who are incapacitated because of some sort of physical or mental health condition. They also can include minor children in domestic law or family law proceedings, including divorce cases.
Types of Domestic Court or Family Court Cases in Which a Guardian Ad Litem is Appointed
A guardian ad litem maybe appointed in a number of different types of domestic court or family court proceedings. These include:
- Divorce cases
- Post-divorce child custody disputes
- Post-divorce parenting time (visitation) disputes
- Paternity cases
- Adoption cases
- Child in need of care proceedings (child abuse and neglect cases)
Guardian Ad Litem and Child Custody and Parenting Time Issues
In divorce and post-divorce cases, a guardian ad litem is most often appointed when matters involving child custody and parenting time are at issue. A guardian ad litem may also be appointed by a judge when a contested issue concerning child support is at issue in a case.
An example of when a guardian ad litem is appointed is a divorce case in which there is a significant dispute involving child custody and parenting time. A court may designate a guardian ad litem to protect the best interests of the child or children from the marriage.
In such a situation, the designated guardian ad litem is the one individual involved in the proceedings that only has the best interests of the child or children in mind. Divorcing parents should be focused on the best interests of the child of children. With that said, they also have their own agendas in marital dissolution proceedings. Moreover, the attorneys representing the parties to a divorce have a legal responsibility to their respective clients. The child or children are not represented by the divorce lawyers.
In addition to actively protecting the legal interests of a child or children during divorce proceedings, a guardian ad litem might also be called upon to prepare a report making recommendations to the court about what is in the best interests of a child or children when it comes to custody and parenting time. Quite like each attorney has the opportunity to make an argument to the court regarding custody and visitation, a guardian ad litem is vested with authority to present to the court what that individually believes is in the best interests of a child or children when it comes to custody and parenting time.
If you are heading into divorce proceedings and have a minor child or children and are unable to reach an agreement regarding custody and parenting time issues, the prospect of the court appointing a guardian ad litem does exist. This particular is the case if your relationship with the other parent is particularly acrimonious. If you have any questions concerning a guardian ad litem, call the Law Offices of Peter Van Aulen, at (201) 845-7400 for a free consultation.