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Guardians and Guardians Ad Litem: What’s the Difference?

Child Battles: Getting the Kid Without Damaging Your Ex

In family court, guardians are sometimes appointed in cases involving contested custody and visitation, termination of a parent’s rights, or abuse and neglect. These individuals are considered guardians ad litem, and they do not hold the same role as a guardian, who makes decisions for a child.

What a Guardian Ad Litem Does

A guardian ad litem is appointed by the court to represent a child’s “best interests”. In cases involving custody and visitation disputes, the guardian may be selected by the attorneys of both parties.

In most cases, the guardian ad litem is an attorney. However, anyone can be named guardian in a private custody or visitation case if he or she meets all of the requirements of the private guardian ad litem statute. Non-attorney guardians are referred to “lay guardians”. These individuals usually have some background in social work or child counseling.

The role of the guardian ad litem is to advocate for the child’s best interest and to also serve as an “investigator and reporter” of sorts. The guardian will spend time with the child and the family to observe the child’s environment and the behavior of the parents. The guardian will then report his or her findings to the court.

The guardian’s role is limited in a few ways. First, he or she cannot provide written custody recommendations within his or her final report. All of the guardian’s written reports must also be submitted in a way that is consistent with state laws.

While the guardian cannot make outright recommendations within the written report, oftentimes, his or her observations insinuate how the courts should decide. For instance, the guardian may report that one parent may provide a wonderful environment for the child, while the other parent may have a substantial drinking problem. Both parents will be entitled to a copy of the guardian’s written report.

The court may also order the guardian ad litem to do other things, and those duties will be listed in the court order. In most cases, the guardian will simply interview the parents, children, doctors, teachers and other individuals who have knowledge of the family. The guardian may also review medical and mental health records of both the parents and the children, or recommend counseling.

What a Guardian Does

A guardian is someone who has the legal authority to make decisions (financial and personal) on behalf of a child or an incapacitated party. Naturally, parents serve as guardians for minor children, but there are instances when parents cannot act as guardians.

Parents may become incapacitated or death may prevent them from representing the child’s best interests. Guardians can be selected by parents in a wall or through a written document that is filed with the courts.

A guardian differs from a guardian ad litem in that the guardian ad litem will represent a child’s best interest during a custody or visitation dispute, whereas a guardian will have the legal authority to make personal and financial decisions on a child’s behalf. Guardians are only appointed if the child’s parents lose their parental rights, become incapacitated, or die.

The Micklin Law Group, LLC is a New Jersey law firm focusing exclusively on family law for men and fathers. Attorney Brad Micklin was recently named to The National Advocates list of Top 100 attorneys from each state. To set up a consultation, call 973-562-0100.

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