Guardian ad Litem FAQ: When is a Guardian ad Litem Necessary in my Orange County Family Law case?
What is a Guardian ad Litem in my California Family Law Case?
If you have witnessed a family law case in California that involved children, you may have heard of a guardian ad litem. The main job of a guardian ad litem is to protect a child’s best interests during a court process that involves the child’s interests, like a child custody case. Not every child has a guardian ad litem; in fact, they aren’t even a part of every family law issue with children.
Your attorney can help you understand who a guardian ad litem is, what his or her function in your family law case will be, and how to interact with one. When it comes to children, the law in California is always intended to promote the child’s best interest, and that is what a guardian ad litem is meant to do as well.
In the simplest terms, a guardian ad litem is a court appointed person who represents a minor during a court proceeding. Guardians ad litem can also represent adults who are not able to make decisions on their own. The court appointed person can be a parent, another relative, a lawyer, or a guardian, as long as they meet certain criteria.
It is always best to contact a skilled family law attorney in your area if you are in a case involving a guardian ad litem. Your lawyer can also help you to promote your child’s best interests, which may alleviate the need for a guardian ad litem, or allow you to make more decisions for your child. As in any family law case, the outcome can be life changing. Working with a family lawyer can make all the difference in the world in your life, or in your child’s life, especially when it comes to learning how to work with a guardian ad litem.
When is a Guardian ad Litem Necessary?
In California, a guardian ad litem may be appointed in a variety of kinds of legal cases, but one will not necessarily be appointed in every single case involving children. Because the guardian ad litem’s job is to represent a child (or an adult who cannot represent him or herself) in a legal proceeding, one will not be appointed unless the case involves children (or an adult who cannot represent him or herself).
The guardian ad litem’s main function is to represent the child’s best interest in any family law case. This means that one may be appointed in several kinds of cases, including the following child custody or visitation cases.
What is the child’s best interest?
California law protects the child’s best interests. Sometimes, when a child’s interests are not being represented in court, the court will appoint a guardian ad litem to help.
The child’s best interest is a legal standard used in California and several other states. Every child is different, so the best interests of every child can also be different. In each situation, the court will evaluate the child’s best interests based on several factors, including the following.
• The child’s age
• The child’s relationship with his or her parents
• The child’s relationship to his or her community, including school
• The child’s health
• The parents’ ability to work together and parent the child
• The child’s needs,
• Other factors that can affect the child’s health and wellbeing.
In most legal cases, the child's best interests can change as he or she grows older and as the lives of the child and the parents change. A child’s best interests may need to be re-evaluated, and a guardian ad litem may or may not be necessary each time an evaluation takes place.
What is the Role of a Guardian ad Litem in a California Family Law Case?
We have established that the general role of a guardian ad litem is to protect the child’s best interests. But, how is this done?
A guardian ad litem must have certain training in order to be a guardian ad litem. The next section discusses these requirements.
In order to protect the child’s best interests, a guardian ad litem needs to get to know the child, the parents, and the legal case at hand. To do this, he or she will evaluate the family in several ways.
• A guardian ad litem will review legal documents that pertain to the case at hand, from existing custody and visitation agreements to police records of domestic violence or abuse;
• A guardian ad litem might observe the parents and the child in their day to day activities to understand normal interactions;
• A guardian ad litem might talk to both the parents and the child either separately or individually;
• A guardian ad litem might observe the child with his or her siblings or in other settings;
• A guardian ad litem might gather other information about the child’s life, as permitted under California law;
• A guardian ad litem might confer with professionals and experts regarding the child’s health and wellbeing;
• A guardian ad litem might work with the child and explain the legal process and the child’s role in it;
• There are other steps that a guardian ad litem might take to evaluate the child.
The court may require the guardian ad litem to file a written report on the evaluation. Most documents, including this one, that relate to children and legal matters in California are confidential. The report submitted to the court will include details about the evaluation, including the following.
• How the information and data was collected, including sources and the amount of time spent collecting information and data;
• All information that was collected, including information that both supports and does not support any conclusion that was reached;
• Explain any shortcomings or data and information that was not collected or not available, and explain why the data or information was not available or not collected;
• Provide recommendations as to the best way to proceed in the legal case, including reasons behind the decisions and why these decisions are in the child’s best interests;
If the guardian ad litem believes that it is in the child’s best interest to have his or her own legal counsel during a trial, the court must be notified at least 10 days before any hearing.
What are the Requirements to be a Guardian ad Litem?
In California, in order to be a guardian ad litem, a person needs to meet certain requirements.
A court will usually only appoint a person who is licensed as a psychiatrist, a psychologist, a marriage and family therapist, or a clinical social worker. Under certain circumstances, the court may appoint an unlicensed person, but only if the following criteria are met. All guardians ad litem are required to have a minimum of five years of postgraduate experience in diagnosing emotional and mental disorders.
• There are no licensed evaluators who are able and willing, within a reasonable amount of time, to perform the evaluations that a guardian ad litem needs to perform;
• The parties involved in the legal case approve the unlicensed person; and
• The court approves the unlicensed person.
A guardian ad litem needs to have a minimum of 40 education and training hours. Training and education covers the following topics:
• The psychological and developmental needs of children,
• Family dynamics,
• The psychological and developmental effects of family law issues like divorce, domestic violence and abuse, sexual abuse, parental conflict, and child abuse, including sexual abuse, emotional abuse, neglect, substance abuse, etc.
• Safety and health issues that could potentially arise during a legal case,
• How to successfully interview and evaluate children and families, gather relevant information and data, and make decisions for a child’s best interests,
• How to create and present reports to the court,
• How to prepare and present testimony in court
Additional experience may also be required by the court prior to approving a guardian ad litem.
What if I Have an Issue with the Guardian ad Litem?
A guardian ad litem should always stand up for a child’s best interests. If, as a parent, you are concerned with your child’s guardian ad litem, you can speak with the guardian ad litem, or you can choose to contact the court.
Nobody should have to go through a family law case on their own. Sometimes, lawyers can also act as a guardian ad litem. A lawyer might even be the best guardian ad litem your child can have, because a lawyer understands the law.
If you have questions about finding a guardian ad litem, approving one, or how to work with one during your family law case, ask a qualified family lawyer for assistance. At Yanez & Associates, we offer free initial consultations so that we can get to know you and your case, and you can get to know us and ask questions about the law and the legal process as it pertains to your case. Contact us today to schedule your free initial consultation.