VI. GUARDIANS AD LITEM
A. What Are Their Roles and Duties?
1. Appointment of Attorneys for Children.
Sections 3150 through 3153 of the Family Code provide courts with the authority to appoint private counsel to represent the interests of minor children in custody and visitation cases.
2. When Does the Court Appoint an Attorney to Represent the Child?
An attorney will be appointed to represent the interests of a minor child either when both parents request it or when the court, in its discretion, determines that such an appointment would be in the best interest of the child. Cal. Fam. Code § 3150. In In re Richard E. (1978) 21 Cal. 3d 349; 146 Cal. Rptr. 604, although it was an error not to appoint counsel for the child in a custody dispute where the child had been in foster care since the age of three and the father was imprisoned, the error was found not to be prejudicial. Courts can also appoint counsel for children on the recommendation of court-appointed investigators, although this recommendation is not binding. Cal. Fam. Code §§ 3114 and 3184.
Examples of situations in which counsel might be appointed for a child include cases in which neither parent wants custody of the child, the child does not wish to live with either parent or in which parental custody might be detrimental to the child, such as situations of abuse or neglect.
Once appointed, private counsel is entitled to “reasonable” compensation and the parents compensate counsel as the court finds appropriate. Cal. Fam. Code § 3153.
3. Why is an Attorney Appointed to Represent the Child?
The simple answer is that an attorney is appointed to represent the interests of the child when the court deems it appropriate. Although some experts argue against such appointments (either because it is psychologically difficult for children who feel that they are placed in the middle and forced to choose or because it too time consuming and costly for the parents), most agree that, in at least some situations, the appointment of counsel will be beneficial to the child. These advocates feel that appointment of independent counsel is necessary so that the child is not used as simply another bargaining chip in the adversarial process. Some commentators have even suggested that due process may require the appointment of independent counsel in every divorce case, although this argument has so far been rejected by the courts. See Leigh v. Aiken (1975) 311 So. 2d 444 (Alameda Court of Appeal). In some states, however, it is routine practice to appoint an attorney for the child in every custody dispute.
4. What is the Difference Between a Court-Appointed Attorney and a Guardian Ad Litem?
In California, a guardian ad litem is appointed under the Probate Code and is not necessarily an attorney. His or her duty is only to speak for the interests of the child in court.
5. What is the Role of the Attorney for the Child?
The duties of an attorney appointed by the court are specified by law and resemble the responsibilities of conscientious attorneys generally. Appointed counsel must interview the child, review all pertinent documents and make further independent investigations as necessary. Cal. Fam. Code § 3151.
B. Case Law, Legislation, Rules and Practice Governing the Role of Guardian Ad Litem in Family Court
1. In Family Law Cases
Appointment of a guardian ad litem for children in family law cases was without statutory authority, unsuited to functions trial court sought to have performed, and unnecessary in light of existing statutory procedures for fulfilling those functions. In re Marriage of Lloyd (1997) 55 Cal. App. 4th 216, 64 Cal. Rptr. 2d 37 The Code Civil Procedure §372 authorizes guardian ad litem to perform acts on behalf of party and Code Civil Procedure §373 provides for appointment of guardian ad litem for minor who is a plaintiff or defendant. In family law matters, minor is neither.
Unlike Evidence Code §730 experts and attorneys for children, for whom compensation is provided by statute, there are no provisions for compensating guardian ad litem in family law matters. Thus, this procedure would impose additional litigation costs on parties without statutory authorization.
2. In Juvenile and Paternity Cases.
In juvenile law matters (Welfare & Institutions Code §326 and Welfare & Institutions Code §356.5) and paternity matters (Code Civil Proc. §372) in which the appointment of a guardian ad litem for a minor child is specifically authorized.
The Procedure for appointment of guardian ad litem is described in Code Civil Procedure §373 which provides:
“When a guardian ad litem is appointed, he or she shall be appointed as follows:
(a) If the minor is the plaintiff the appointment must be made before the summons is issued, upon the application of the minor, if the minor is of the age of 14 years, or if under that age, upon the application of a relative or friend of the minor.
(b) If the minor is the defendant, upon the application of the minor, if the minor is of the age of 14 years, and the minor applies within 10 days after the service of the summons, or if under that age, or if the minor neglects to apply, then upon the application of a relative or friend of the minor, or of any other party to the action, or by the court on its own motion.
(c) If an insane or incompetent person is a party to an action or proceeding, upon the application of a relative or friend of such insane or incompetent person, or of any other party to the action or proceeding, or by the court on its own motion.” Code Civil Procedure §373.
Probation officer or social worker who files petition to prevent child abuse shall be child’s guardian ad litem, unless court names another.
Welfare & Institutions Code §326 provides
“For the purposes of Child Abuse Prevention and Treatment Act grants to states [Pub.L. No. 93-247], in all cases in which there is filed a petition based upon alleged neglect or abuse of the minor, or in which a prosecution is initiated under the Penal Code arising from neglect or abuse of the minor, the probation officer or a social worker who files a petition under this chapter shall be the guardian ad litem to represent the interests of the minor in proceedings under this chapter, unless the court shall appoint another adult as guardian ad litem. However, the guardian ad litem shall not be the attorney responsible for presenting evidence alleging child abuse or neglect in judicial proceedings. No bond shall be required from any guardian ad litem acting under this section.” (Welfare & Institutions Code §326.)