What is a Guardian ad Litem and What Do They Do?
A guardian ad litem is a legal court appointed guardian who represents the best interests of the unborn, children, and incompetent persons during child custody or other legal actions and proceedings. They are legally responsible for protecting the best interests and well-being of those charged to their care, usually a minor.
Every parent going through divorce and dealing with child custody wants what seems to be the best for their child.
Whatever the circumstances might be, the Guardian Ad Litem looks into the family situation and advise the court on things like where the child should live, if there is possible abuse from parents, and/or what contact the child should have with the parent. Guardian Ad Litem's can be lawyers or a kind of mental health professional who have special training who have the main goal of having the best interest of the child.
Depending on the court order, their jobs can be broad. So to provide some clarity about what to expect we've created this post for you.
The Guardian Ad Litem (GAL)’s role is to represent the best interests of the children as determined by the GAL through investigation.
What is a Guardian Ad Litem’s objective?
The GAL will investigate the facts, take part in negotiations, and take a position in court on legal custody and placement. It is also involved in the financial issues of a case when those issues affect the children, such as child support and child expenses.
What are some “Must Know” Facts about a Guardian Ad Litem?
- The GAL does not have any of the rights or duties of a parent.
- Although the GAL may be incorrectly called the “children’s attorney,” the GAL’s role is to advocate for the best interests of the children, even though it may be contrary to what the child wants.
- A GAL becomes involved when parents cannot agree on custody or placement, the court must appoint a GAL. The parents must first try mediation to reach an agreement, unless the court waives the requirement.
- A GAL is appointed by a family court commissioner or judge, usually upon request of one of the parents.
- The GAL investigates facts that are relevant to the issues in your case. Much of the investigation is called “informal discovery,” which is conducted through interviews with each parent, the child or other people with significant information.
- You may also be asked to sign a release authorizing the GAL to check relevant records, such as school, medical, or mental health records.
- The GAL may use “formal discovery” to assist in the investigation, including interrogatories, requests for document production, or conducting depositions.
- The GAL generally will give the parents and/or attorneys a preliminary summary of what the GAL will present to the judge. The input could change depending on additional evidence or facts that are uncovered.
- Generally, the parents’ attorneys will discuss the GAL’s preliminary recommendations with their clients. If the parents cannot agree, the case is prepared for trial before a judge, who will consider the evidence presented and make the final decision.
- The GAL serves in a case until either the parents reach a written agreement resolving the issues and the judge approves it, or there is a hearing and the judge decides the case.
Who pays for a Guardian Ad Litem?
The judge decides who pays for the Guardian Ad Litem’s service. Generally, each parent is responsible for one-half of the GAL’s total costs, including the GAL’s legal fees and investigation costs, such as tests and experts.
A guardian ad litem is unique in its relationship to guardianship due to it having been created by a court order, and is a temporary form of guardianship which lasts only for the duration of the legal action. Courts appoint these types of representatives for those who need help in protecting their rights in court. These court-appointed guardians are common in divorces, child neglect cases, child abuse cases, paternity suits, inheritances which are contested, etc. Guardians ad litem are most commonly attorneys.
The law (§ 879.23(1)) states that a Guardian ad Litem (GAL) be appointed for any person(s) interested who is considered to be a minor under law or who is incompetent and does not have a guardian of estate, or does have a guardian of estate, but the guardian does not appear on his or her behalf. This includes cases where the guardian's interest is deemed adverse to the best interest of the minor or incompetent person.
- 879.15(1) states that a minor or the person deemed incompetent by the court must appear by GAL or by guardian of estate, who can appear by attorney. This can also be accomplished by appearing with another individual under doctrine of virtual representation, as stated in § 879.23(5).
- 879.23(1) also states that a guardian ad litem may be appointed for persons not present, or who are not presently unascertainable. Further, guardian ad litem will not be appointed or will not appear in the same case for individuals whose interests differ.
- 879.23(2) states that the court may appoint a guardian ad litem when making an order for a hearing in a case, or a notice of appointment and a hearing will be served on the appointed guardian ad litem, or appointment will be made on the day of the hearing before proceedings commence.
- 879.23(3) states that the guardian ad litem must act as guardian and representative throughout the proceeding until proper distribution has been made to or for the benefit of the individual being represented, unless the guardian is relieved at an earlier time by the court. The guardian ad litem will be relieved by the court when the minor has reached majority during the proceedings, or incompetency has terminated, or when the individual being represented has no more interest in the estate or the matter. Unless reappointed for that purpose, if a will creates a trust, the appointed guardian ad litem in estate administration does not have the responsibility in regards to testamentary trust administration.
- 879.23(4) states that individuals who may serve as guardian ad litem may be either an attorney admitted to practice in Wisconsin, parent of a minor, or the adult child of an incompetent person. However, a parent or child of an individual to be represented may be appointed guardian ad litem if the court finds that the parent or child is an attorney admitted to practice in Wisconsin, or is otherwise qualified to perform the necessary functions of guardian ad litem. Further, in probate of an estate that a minor has interest that is not likely to exceed $10,000, the guardian ad litem must be parent – unless the court finds that neither parent is qualified or willing to serve. If neither parent is qualified or willing to serve, guardian ad litem must be a qualified attorney practicing in Wisconsin.
- 879.23(5) discusses the requirements for an alternative to guardian ad litem, virtual representation. A court may bypass or end guardianship for a minor, an incompetent person, or an individual not present or who is currently unascertainable if there is a person living who has full legal rights and capacity, who is a party to the proceeding, and who has mutual interest.
Guardians ad litem have responsibility and power that is quite extensive. While their duties are most common in cases which involve children, there are many areas which are in need of their service.
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