In many divorce cases where the best interests of a child, or children, must be considered it is common for the court to appoint someone to investigate the contentions of both sides and present their findings to the court. As a divorce lawyer trusts might explain, this person is known as a guardian ad litem (“guardian for the suit”) and is considered an officer of the court until discharged from that duty.
When a Guardian Ad Litem is Appointed
A guardian ad litem can be appointed if there is reason to believe that someone is incompetent and thus unable to make rational decisions regarding their personal affairs. As such, guardian ad litems are often appointed when a spouse or child of an elderly parent believes that person to be incapable of managing their daily affairs. Guardians may also be appointed for those found to be mentally ill or otherwise judged to be incompetent for any reason.
In a divorce action, the court must consider the well-being of any children as being above the wishes of either parent. To this end, the guardian ad litem is ordered to investigate the needs of any child or children and to present their findings to the court.
The Guardian Ad Litem’s Report
It is important to remember that the guardian ad litem is an officer of the court and reports his or her findings to the court and it is the court that makes rulings based on the report of the guardian. The court is not obligated to accept the guardian ad litem’s findings and may ignore them altogether or accept only parts of the guardian’s report.
Role and Responsibilities of a Guardian Ad Litem
When a divorce case is filed in a superior, family, or domestic relations court and the parents are in disagreement on questions of custody and visitation rights, either parent may ask the court to appoint a neutral third party to advise the court prior to a final ruling. There are several important points to understand:
- The court also has the authority to appoint a neutral party to act as its adviser in the case.
- This guardian ad litem, who often is an attorney or social services worker, has the authority of the court to investigate the claims of both parents.
- In his or her investigation the guardian may request the assistance of other individuals or agencies such as a psychologist, state social services such as Children’s Protective Services, schoolteachers, or other family members in the preparation of the guardian’s report.
Financial Decisions by the Guardian Ad Litem
Unlike guardians that may be appointed in other cases, a guardian ad litem in a divorce proceeding does not have the authority to make financial decisions for the children or have access to family funds. If a guardian ad litem finds that a child has an immediate financial need, the guardian may request that either parent, or both, meet that need but has no authority to order or compel either parent to do anything.
Objections to the Guardian Ad Litem’s Report
Should either parent disagree with the decision to appoint a guardian ad litem, or be unwilling to accept the individual the court intends to appoint, the parent must make their argument to the court. If the court rejects those arguments, the objecting parent must still comply with the order of the court and any reasonable requests by the guardian ad litem. Failure to do so, or willfully hindering the guardian’s investigation, may lead to a contempt of court citation.
In a divorce action a guardian ad litem is appointed by the court to act as an advisor to the court regarding the best interests of any children that may be impacted by the divorce.
Thanks to our friends and contributors from Pioletti & Pioletti for their insight into divorce practice.