Guardians Ad Litem

A guardian ad litem is a special guardian of a minor child appointed by the court to protect the best interest of the child. A guardian ad litem may be an attorney or a lay person. In some states, the nonattorney guardian ad litem is called a court-appointed special advocate (or CASA). In Virginia, for example, only attorneys can be guardians ad litem however, in North Carolina, lay-persons can be guardians ad litem, but the guardian must work with an attorney. The terminology is state specific with relatively few differences between the nonattorney guardian ad litem and the court-appointed special advocate.

Guardians ad litem represent the interests of a child when it has been alleged that child maltreatment has occurred. Child maltreatment refers to specific harmful acts, or a failure to act, on the part of the parents or legal guardians. The categories of offenses included in child maltreatment are emotional abuse, dependency, abandonment, neglect, and physical or sexual abuse. Some states are moving toward having guardians ad litem involved in divorce proceedings. To date, however, no state has formally included such cases in the duties of the guardian ad litem.

Representation of children in the judicial system is a relatively new concept. The Child Abuse Prevention and Treatment Act of 1974 laid the foundation for legal representation of children in the American judicial system. States vary in their approach to this representation however, in most cases, the courts have determined that a child needs someone to speak for him or her. The key players in any maltreatment case are the parents or legal guardians of the child, the social workers, and the child. The parents or legal guardians usually have an attorney who explains how the system works and counsels the parents or legal guardians on how to behave in the courtroom. The Department of Social Services (or similar state agencies with different names) employs social workers to investigate maltreatment cases. Social workers are familiar with the legal proceedings and understand what is expected of them in court. Thus all parties in the case are represented by legal counsel. The only entity not represented is the child. The courts have determined that children need representation in such cases.

[Page 194]As the voice of the child, the guardian ad litem independently investigates the charges and makes a recommendation to the judge about both the facts of the case and what should be done with the child. It is important to remember that the guardian ad litem is only interested in what is best for the child. Typically, social workers are interested in keeping families together, regardless of how difficult the family situation may be. Often the parents or legal guardians are interested in avoiding legal trouble. The two perspectives often conflict, and the child is left in the middle without having anyone hear his or her wishes. The guardian ad litem listens to the child, presents in court what the child wants, and expresses an opinion about what is the best course of action in the given case.

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