What you need to know when a Guardian ad Litem is appointed

In many (too many, in my opinion) divorce and family law cases in Utah (and other states) an attorney is appointed to “represent the interests of the children.”  This attorney is referred to as a “guardian ad litem.”  the “ad litem” part is a latin phrase for “to the lawsuit,” so a guardian ad litem is, otherwise stated, a guardian appointed to act in the legal interests of the children in a divorce or other child custody-related case.  In Utah, a guardian ad litem has the following duties and authority in family law cases:

 § 30-3-10.8. Parenting plan — Filing — Modifications.

(1) In any proceeding under this chapter, including actions for paternity, any party requesting joint custody, joint legal or physical custody, or any other type of shared parenting arrangement, shall file and serve a proposed parenting plan at the time of the filing of their original petition or at the time of filing their answer or counterclaim.

(2) In proceedings for a modification of custody provisions or modification of a parenting plan, a proposed parenting plan shall be filed and served with the petition to modify, or the answer or counterclaim to the petition to modify.

(3) A party who files a proposed parenting plan in compliance with this section may move the court for an order of default to adopt the plan if the other party fails to file a proposed parenting plan as required by this section.

(4) Either party may file and serve an amended proposed parenting plan according to the rules for amending pleadings.

(5) The parent submitting a proposed parenting plan shall attach a verified statement that the plan is proposed by that parent in good faith.

(6) Both parents may submit a parenting plan which has been agreed upon. A verified statement, signed by both parents, shall be attached.

(7) If the parents file inconsistent parenting plans, the court may appoint a guardian ad litem to represent the best interests of the child, who may, if necessary, file a separate parenting plan reflecting the best interests of the child.

 78A-2-228. Private attorney guardian ad litem — Appointment — Costs and fees — Duties — Conflicts of interest — Pro bono obligation — Indemnification — Minimum qualifications.

(1) (a) The court may appoint a private attorney as guardian ad litem to represent the best interests of the minor in any district court action in which the custody of or visitation with a minor is at issue. The attorney guardian ad litem shall be certified by the Director of the Office of Guardian Ad Litem as having met the minimum qualifications for appointment, but may not be employed by or under contract with the Office of Guardian Ad Litem.

(b) When appointing an attorney guardian ad litem for a minor under this section, a court may appoint the same attorney guardian ad litem who represents the minor in another proceeding, or who has represented the minor in a previous proceeding, if that attorney guardian ad litem is available.

(c) If, after appointment of the attorney guardian ad litem, an allegation of abuse, neglect, or dependency of the minor is made the court shall:

(i) determine whether it is in the best interests of the minor to continue the appointment; or

(ii) order the withdrawal of the private attorney guardian ad litem and appoint the Office of Guardian Ad Litem.

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(3) The attorney guardian ad litem appointed under the provisions of this section shall:

(a) represent the best interests of the minor from the date of the appointment until released by the court;

(b) conduct or supervise an ongoing, independent investigation in order to obtain, first-hand, a clear understanding of the situation and needs of the minor;

(c) interview witnesses and review relevant records pertaining to the minor and the minor’s family, including medical, psychological, and school records;

(d) (i) personally meet with the minor, unless:

(A) the minor is outside of the state; or

(B) meeting with the minor would be detrimental to the minor;

(ii) personally interview the minor, unless:

(A) the minor is not old enough to communicate;

(B) the minor lacks the capacity to participate in a meaningful interview; or

(C) the interview would be detrimental to the minor;

(iii) to the extent possible, determine the minor’s goals and concerns regarding custody or visitation; and

(iv) to the extent possible, and unless it would be detrimental to the minor, keep the minor advised of:

(A) the status of the minor’s case;

(B) all court and administrative proceedings;

(C) discussions with, and proposals made by, other parties;

(D) court action; and

(E) the psychiatric, medical, or other treatment or diagnostic services that are to be provided to the minor;

(e) unless excused by the court, prepare for and attend all mediation hearings and all court conferences and hearings, and present witnesses and exhibits as necessary to protect the best interests of the minor;

(f) identify community resources to protect the best interests of the minor and advocate for those resources; and

(g) participate in all appeals unless excused by the court.

(4) (a) The attorney guardian ad litem shall represent the best interests of a minor. If the minor’s wishes differ from the attorney’s determination of the minor’s best interests, the attorney guardian ad litem shall communicate to the court the minor’s wishes and the attorney’s determination of the minor’s best interests. A difference between the minor’s wishes and the attorney’s determination of best interests is not sufficient to create a conflict of interest.

(b) The court may appoint one attorney guardian ad litem to represent the best interests of more than one minor child of a marriage.

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From the Utah Uniform Parentage Act

 78B-15-612. Child as party — Representation.

(1) A minor child is a permissible party, but is not a necessary party to a proceeding under this part.

(2) The tribunal may appoint a guardian ad litem to represent a minor or incapacitated child if the child is a party or the tribunal finds that the interests of the child are not adequately represented.

 

January 11, 2016Tags: child custody, Children in Divorce