Thursday, October 25, 2012
New Jersey Rules of Court Family Part R. 5:8B helped to eliminate the confusion between court-appointed counsel for children and a guardian ad litem for children. Court-appointed counsel services are to the child(ren). Court-appointed counsel is appointed for the purpose of being a legal advocate and, therefore, must be an attorney. Court-appointed counsel also acts as an independent advocate and actively participates in any hearings. A guardian ad litem is completely independent of the legal process, and does not even have to be an attorney. They are appointed in the capacity of a legal expert to give a non-biased opinion. A guardian ad litem’s services are to the court on behalf of the child. This blog discusses the role of a guardian ad litem.
In cases where parenting time and custody are at issue, courts can appoint a Guardian Ad Litem ("GAL"). A GAL person is appointed solely for the purpose of representing the best interests of the child in the pending custody matter. Once the court appoints a GAL, the GAL acts as an independent investigator, evaluator and fact-finder for the court as to what would be in the best interests of the child(ren). After the GAL has performed his or her duties, he or she submits a report to the court with recommendations. A GAL does not represent or advocate for any party, including the child.
In addition to preparing a written report, pursuant to Rule 5:8B(a), the GAL may be called to testify and be cross-examined. In preparation for writing the report, the GAL may interview all parties involved, obtain any relevant documents, speak with the attorneys in the case, ask for assistance from independent experts with the court’s permission, and request from the court anything else deemed necessary to create a complete report.
Because the GAL’s role is to act on behalf of the court, there is no perceived bias in favor of one parent. A parent still has the option of presenting evidence to refute, clarify or supplement the testimony of the GAL. Additionally, a trial judge is never bound to accept a GAL’s recommendations and cannot leave it up to the GAL to make final decisions regarding custody and parenting time.
A court-appointed GAL is paid for by the parties involved; therefore, this is not a tool that is used often or freely. This rate is fixed in the initial appointing order by Rule 5:8B(d); however, the trial judge can fix a retainer fee in the order and allocate final payment between the parties. Further, the GAL is required to submit monthly statements to the parties involved.
The authority of the GAL is limited to the representation of the child involved in the action.
Written by Allyson Lutley, law clerk at Law Offices of Linda A. Kerns, LLC. Edited by Elizabeth A. Bokermann, Esquire, associate attorney.