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During your divorce or custody case the court may appoint a guardian ad litem to represent your child. What is a guardian ad litem? This is a person who will represent your child’s point of view in the case. A guardian ad litem ensures that the court hears from all three perspectives in the case: from the child and from each of the parents. Consequently, neither parent may serve as the child’s guardian ad litem.
If the court appoints a guardian ad litem for your child/children, you should consult with your New Jersey divorce lawyer for guidance, but the following information will help you understand the process.
What is a Guardian Ad Litem: What Does a Guardian Ad Litem Do?
A guardian ad litem will meet with the child and the parents (or guardians), conduct interviews and gather information to include in a written report that will be submitted to the court. A guardian ad litem will also meet with other individuals who can provide relevant information about the well-being of the child. Those may include teachers, school staff and administrators, health care professionals, therapists or counselors, and other family service providers.
The guardian ad litem must be available to testify in court, and they may also be subject to cross-examination. The written report submitted to the court must include the results and factual statements from the investigation, information about the level of cooperation the guardian ad litem received from both parents, any limitations to the investigation, and recommendations that will include any preferences expressed by the child.
The Difference Between a GAL and an Attorney for the Child
It’s important to distinguish between a court-appointed attorney for a child and a court-appointed guardian ad litem.
What is an attorney for a child? A court-appointed attorney’s services are to the child. This attorney acts as an independent legal advocate for the best interests of the child. An attorney for a child takes an active role in the hearing, they may subpoena or cross-examine witnesses, and file appeals when necessary.
What is a GAL and how is it different from an attorney for a child?
A court-appointed guardian ad litem’s services are to the court on behalf of the child, working as an independent investigator and fact-finder who then makes recommendations to the court about what serves the best interests of the child.
Why the Distinction Matters
It’s a subtle difference in definition, but the responsibilities are clearly different: a guardian ad litem is an impartial fact-finder, while an attorney is a legal advocate. Somewhat adding to the confusion about these different roles, an attorney can be appointed as a guardian ad litem, but so can a variety of other professionals. Also, a guardian ad litem can recommend that the court appoint an attorney for the child.
What to Say (and What Not to Say) to a Guardian Ad Litem
If the court appoints a guardian ad litem, you will have an opportunity to meet and have a conversation about the best interests of your child. Be prepared to welcome the guardian ad litem into your home. A guardian ad litem will typically observe the child in the home or homes where they regularly live or have parenting time.
The guardian ad litem will conduct a face-to-face interview with any child over the age of 3, and each parent, guardian, caregiver or any adult who lives in the homes where the child resides or has parenting time. In your interactions with the guardian ad litem, it’s important to be friendly and welcoming. You want this person to like you. The guardian ad litem is determining what’s in your child’s best interest, so a positive impression really counts.
It’s equally important to be honest. Remember that anything you say can be included in the final report to the court. This is not the time to be caught in a lie. When in doubt about what to say to a guardian ad litem, it’s always a good idea to consult with your NJ child custody lawyer. It’s likely that your lawyer knows the guardian ad litem and can give you tips about the best way to approach difficult topics.
You should avoid criticizing the other parent, as this could just reflect poorly on you. However, if you have any concerns about the other parent, especially if you believe there is a potential for harm to your child, it is appropriate to express that during this meeting.
While the guardian ad litem is conversing with your child, it is very important that you avoid the temptation to interrupt. According to New Jersey law, parents are forbidden to directly or indirectly influence, coach or pressure the child about what to say – or not say – to the guardian ad litem. If the guardian ad litem has any reason to believe the child has been coached or influenced, they are required to document that in their report, and the parent may face sanctions by the court.
How a GAL is Appointed in a New Jersey Custody Case
In New Jersey, a guardian ad litem may be appointed in any divorce case involving custody or visitation. The court itself may determine to appoint a guardian ad litem, or it may appoint one in response to an application filed by either or both parents. Again, the guardian ad litem works for the court on behalf of the child, investigating, fact-finding, and making recommendations about the child’s best interests.
What to Expect from the Guardian Ad Litem’s Report
The guardian ad litem helps the court determine the best interests of the child by investigating, gathering evidence and submitting a written report on the following:
- Parental responsibility
- Place of residence
- Parenting time, including times and locations
- Legal custody and decision making
- Relocation
- Education
- Daycare/childcare
- Healthcare
Factual statements and recommendations about these and other relevant issues are required to be in the report that will be prepared and submitted to the court by the guardian ad litem. The GAL must also document any lack of cooperation or attempts by either parent to influence a child’s responses.
Don’t Go Into This Alone: A Lawyer Can Help
If a guardian ad litem is appointed for your child, it’s natural to feel apprehensive about it. You don’t need to wing this on your own. Your lawyer can help you prepare for your interview with the guardian ad litem and offer assistance throughout the process. At DeTorres & DeGeorge Family Law, we are available to answer your questions and help you learn more about what is a guardian ad litem. Contact us today to schedule a consultation with one of our attorneys.
