Guardian ad Litem

The legal term guardian ad litem (“GAL”) refers to an individual appointed by the court to represent the best interests of a minor child in legal proceedings, such as divorce, child custody, child abuse and neglect, and parental rights and responsibilities cases. A guardian ad litem has a unique responsibility to the child, protecting only his interests in cases that are frequently fraught with high emotions and conflict. In many jurisdictions, the court appoints an attorney to specifically represent the child as the GAL, though another qualified adult not a party to the case may serve in this position. Guardians ad litem are also appointed to represent the interests of mentally ill or disabled adults. To explore this concept, consider the following guardian ad litem definition.

Definition of Ad Litem

Adjective

  1. For the purposes of legal action only.
  2. For a particular action or proceeding.

Origin

1760-1770        Latin

Difference Between a Guardian and a Guardian ad Litem

A guardian is any individual legally responsible for a minor child or mentally incapacitated adult (“ward”), including their property and financial assets. A guardian ad litem is appointed specifically to represent such an individual’s interests in legal proceedings, and has no authority over the ward’s assets. Because this responsibility requires guidance in a legal environment, many states require guardians ad litem to undergo training. In many jurisdictions, volunteers with CASA (Court-Appointed Special Advocates), who are trained within their respective counties, are appointed as guardians ad litem.

History of the Guardian ad Litem

Prior to the early 1900s, minor children and incompetent adults had few rights in legal actions. In 1938, the Federal Rules of Civil Procedure addressed the rights of these under-served individuals in three ways:

  1. Legal guardians are allowed to sue or defend against legal action on behalf of minor children and incompetent adults.
  2. Minor children and incompetent adults are allowed to name a representative, or guardian ad litem, to sue for them.
  3. Federal courts are encouraged to appoint a guardian ad litem for children and incompetent adults not already represented in a legal action. In this, the courts have discretion, and are not required to appoint a GAL.

Increased Use of the Guardian ad Litem for Adults and Children

Throughout the 1970s and 1980s, a steep rise in divorce cases, and increased reporting of child abuse and neglect led to the creation of laws specifically geared to outlining training requirements, qualifications, duties, and authority of guardians ad litem. These laws also specified situations in which a GAL is required to be appointed, taking away some of the discretionary powers of the court in situations of abuse and neglect. Additionally, the guardian ad litem for child custody has found increasing support in the U.S.

Responsibilities of a Guardian ad Litem for Adults and Children

A guardian ad litem’s primary responsibilities are to help ensure the best interests of the child he represents are met, and to help shield the child from the distressing experience of litigation. The GAL investigates the facts of the legal case as they apply to his ward, interviews witnesses, and gathers important information. The GAL then makes recommendations to the court, often testifying at trial, on issues of custody, visitation, and other issues that affect his ward. In some jurisdictions, the GAL’s responsibilities continue after court orders have been made, in order to ensure the court’s ruling is adhered to.

Specific responsibilities often include:

  • Gathering information for the court
    • What has happened to bring the ward into litigation
    • The needs of the ward
  • Making recommendations to the court
    • The ward’s needs regarding safety
    • Treatment or counseling plan for the ward and/or family
    • The permanent resolution that would be in the ward’s best interest
  • Case monitoring after court ruling
    • Whether services ordered by the court are being provided
    • Whether progress is being made by the parents and/or family
    • Whether there are additional issues that need to be addressed by the court

Traditionally, the qualifications and training required, low or non-existent pay, and the potential of a GAL to be sued by unhappy parents, have resulted in an insufficient number of individuals willing to serve as guardians ad litem. This sometimes results in a backlog of cases in the court.

Other Situations in Which Guardians ad Litem are Appointed

Family law and child abuse and neglect are not the only circumstances in which a GAL is appointed. The court may appoint a GAL to represent a minor child or mentally ill or disabled person’s interests in probate matters, or in personal injury, medical or legal malpractice, or other civil litigation matters. In such a case, the GAL may review the terms of any settlement offers to ensure they are fair, and in the best interests of the ward.

Related Legal Terms and Issues

  • Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
  • Probate – The legal process of administering an estate after death.
  • Personal Injury – The branch of law that deals with injuries to the body, mind, or emotions, as opposed to property.
  • Malpractice – Improper, careless, wrong, or illegal actions by someone, such as a doctor or lawyer, providing professional duties or services.

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