Divorce Attorney Scott J. Stadler

    • 04 JUN 15

    Understanding the Guardian Ad Litem

    Sad looking girl with her fighting parents behind herThere are several different individuals that may be involved in your family law case. Common parties to a family law case include the spouses, attorneys that may be present, and the judge hearing the case. These are well-known, but there may be others involved as well, including a representative known as a “guardian ad litem.” This guardian is usually appointed by the court to represent the best interests of minor children affected by the matter.

    A family law case is rarely a simple process. It can be stressful and complicated, providing unnecessary burdens to the parties involved. Family law matters, however, do not only affect the parties listed on the case, but also affect people directly involved with parties to a case. This can be especially tough for children involved in a divorce, since they are typically the persons with the least say, but can have the most impact on a divorce proceeding.

    What does a Guardian Ad Litem Do?

    A guardian ad litem is a court-appointed volunteer who is responsible for protecting the rights of a child, and advocating for the best interests of the child in a court proceeding. While they may be called guardians, a guardian ad litem will generally not have custody of the child, and will generally only make monthly visitations with the child in order to better protect the rights of the child.

    While protecting the rights of a child and advocating for the best interests of the child can seem like a bit of a nebulous task, Florida Statute 61.403 regulates the powers and authorities of a guardian ad litem. Under this statute, a guardian ad litem is granted the powers, privileges, and responsibilities to advocate for the best interests of the child.

    While the statute lists 8 examples of powers and privileges of a guardian ad litem, the duties can be summed up in four categories: Investigation, Facilitation, Advocacy, and Monitoring.

    Investigation
    One of the tasks of a guardian ad litem is to act as an investigator for the child. Generally, the guardian ad litem will be allowed to investigate allegations of the pleading affecting the child. While the guardian ad litem is allowed to investigate into these allegations, the power is not sweeping, is only granted upon providing notice to both parties, and is subject to any conditions set forth by the court. Generally, however, a guardian ad litem’s investigation can include an examination of the relevant history, environment, relationship, and needs of the child.

    Facilitation
    Another way a guardian ad litem can protect the best interests of the child is by facilitating a collaborative relationship between all parties involved in the case. This can be done through interviews and any other contact the guardian ad litem may have with the parties. It can also be achieved through the use of impartial expert examinations, which can carry less of an adversarial tint than any expert examinations requested by the parties.

    Advocacy
    While a guardian ad litem is not permitted to practice law, he is allowed to advocate for the rights of the child. This means that he will represent the best interests of the child to the court, as well as any relevant agencies. Some ways a guardian ad litem can advocate for the best interests of the child include requesting examinations of parties, request documents from people, and by writing oral recommendations to the court. Interestingly enough, while a guardian ad litem is a court-appointed volunteer, any motions that need to be filed or requests that the guardian ad litem has must be made through counsel.

    Monitoring
    Finally, there is the matter of monitoring the child. Generally, this involves the monitoring of whether court orders, and plans of the Department of Children and Families, are carried out. This ensures that any orders that are given are maintained by the families or individuals involved, and can go a long way to protect the rights and best interests of the child.

    Who Can be a Guardian Ad Litem?

    The interesting thing about a guardian ad litem is that, even though they represent the best interests of the child in a case, they are not the child’s attorney. As such, it is not necessary for a Guardian Ad Litem to be an attorney, and anyone can volunteer to become a guardian ad litem through the Florida Guardian Ad Litem Program. Even though anyone can be chosen as a Guardian Ad Litem, the organizations that regulate the guardian ad litem often contain their own training and educational requirements that individuals must meet in order to ensure that the best interests of the child are met.

    When are they Used in Family Law Cases?

    Under Florida Statute 61.401, a guardian ad litem is called in when there have been allegations of child abuse, neglect, or abandonment that have been verified by the court.

    In cases of abuse, the court must find that a willful act or threatened act that results in any injury or harm, which can be physical, mental, or even sexual. In addition, acts that are likely to cause significant impairment to the child’s mental, emotional, or physical health are also considered to be abuse, as well as acts of omission, in which the parent’s inaction lead to the harm or injury.
    In order to find that a parent has neglected a child, the court must find that a person responsible for the welfare of the child failed to supply the child with the adequate necessities, even though that person had the financial ability to do so. Necessities that the courts look to include:

    -food,
    -clothing,
    -shelter, and
    -health care.

    Finally, in order to find abandonment, the court must find that a parent or legal custodian, while being able, made no significant contributions for the care and maintenance of the child, or has failed to maintain a substantial and positive relationship with the child.