An Explanation of Guardian Ad Litem
December 18th, 2020
Contributors: Russel B. Prophet, Tisha S. Morrical
Under the revised Kansas code for care of children, a judge must appoint a guardian ad litem (GAL) for an individual under age 18 who is the subject of a petition for a child in need of care. Judges also appoint a GAL in other situations such as high conflict divorces. In this discussion, our family law attorneys at the Salina law firm of Hampton & Royce explain the role and responsibilities of a guardian ad litem appointed by a Kansas court.
What Is a Guardian Ad Litem?
Kansas law requires the court to appoint an attorney as guardian ad litem to appear for and represent the best interests of a child during a child-in-need-of-care (CINC) proceeding under the statutes governing care of children. Whether a GAL is appointed in a CINC proceeding or another type of case, a GAL has specific duties and responsibilities.
The duty of a guardian ad litem is to represent the best interests of the child. Those interests may or may not be the same as the child’s own interests or wishes. If the child’s wishes are inconsistent with the GAL’s determination of the child’s best interests, the GAL must inform the court of the disagreement and inform the Court of any information that the child would like to share to the Court. In that situation, the child or GAL may request appointment of a second attorney to represent the child’s own position. The court may grant the request if good cause is shown. If a second attorney is not appointed, then the GAL must continue to provide to the Court the information that the child wishes to report.
The relationship between a guardian ad litem and a child is not the same as the traditional relationship between an attorney and client, since the GAL represents the best interests of the child. Even so, a guardian ad litem creates a strong on-going relationship with the child, to encourage information-sharing and participation to the greatest possible extent. While a GAL may maintain confidentiality of the child’s communications in building that relationship, the attorney-client privilege does not extend to communications between a guardian ad litem and the individual the GAL represents.
Responsibilities of a Guardian Ad Litem
State law and Kansas Supreme court rules establish the duties of a guardian ad litem. The responsibilities are substantial. Rule 110A establishes standards for the GAL, including specific educational background, continuing education, and recordkeeping requirements. The rule also provides detailed standards for the conduct of the GAL during representation. Following is a summary of those standards.
Conducting an Independent Investigation
The GAL must conduct an independent investigation of all relevant materials, documents, records, and evidence. The investigation usually includes conducting interviews with persons who have knowledge of the facts in the case.
The GAL submits the results of the independent investigation to the court, along with the GAL’s recommendations concerning the child’s best interests. The GAL’s duty to investigate continues throughout the representation.
Determining the Best Interests of the Child
The court rule provides factors for the GAL to consider in evaluating the best interests of the child. The factors include the child’s age, maturity, culture, and ethnicity, as well as a number of factors relating to the child’s own and family circumstances. The results of the GAL’s investigation are also a factor.
Representing the Child in Court
A guardian ad litem files necessary and appropriate documents on the child’s behalf throughout the proceeding. In all court hearings, the GAL represents the child’s best interests. All relevant facts must be presented, including the child’s own position.
The GAL must vigorously advocate for the best interests of the child. Advocacy may include calling, examining, and cross-examining witnesses. The GAL also may submit and respond to evidence. Presenting oral and written arguments concerning evidence is an additional responsibility of the GAL.
Communicating With the Child
Throughout the proceedings, the guardian ad litem communicates with the child, explaining the process and the GAL’s role in a way the child can understand. In a situation when the child’s own position differs from the guardian’s and the court appoints a second attorney for the child, the child and guardian continue to communicate. The court may require the communications to occur in the presence of the child’s attorney.
Monitoring and Making Recommendations
A guardian ad litem is responsible for monitoring implementation of court orders and service. The GAL also may recommend services for the child and the child’s family when appropriate.
Appointment of a Guardian Ad Litem
The court must appoint a guardian ad litem immediately on the filing of a petition for a child in need of care, when neglect or abuse concerns result in removal of a child from the parents’ custody. A judge also may appoint a GAL in a private custody dispute, either on the request of a party or at the court’s own discretion. Other Kansas laws provide for appointment of a GAL in additional circumstances, such as a probate proceeding involving a person under legal disability.
Talk With Our Experienced Salina, Kansas Family Law Attorneys
Our domestic and family law attorneys at Hampton & Royce, L.C., assist clients with the full range of Kansas family law matters. We serve clients throughout the State of Kansas. Contact us to schedule a consultation.
Categories: Family Law