Guardian Ad Litem Statutes in Divorce and Custody Proceedings

In contrast to the constitutionally mandated representation of children in abuse and neglect proceedings, the representation of children in divorce-related proceedings is not mandated by any rule of law. Many statutes allowing the appointment of a child’s representative in divorce/custody proceedings are of relatively recent origin. Perhaps because the representation of children in divorce and custody proceedings is of more recent origin, the statutes that sought to define the guardian’s role drew upon the guardian ad litem statutes in abuse and neglect proceedings. Consequently, guardian ad litem statutes in dissolution-of-marriage/custody proceedings are no less chaotic and ill-defined. As a result, all too often the child’s representative becomes little more than an advocate not for the "child’s best interests" as determined by the child’s advocate but, rather, becomes an advocate for either the mother or the father.

Like the guardian ad litem statutes in abuse and neglect proceedings, guardian ad litem statutes in dissolution-of-marriage/custody proceedings suffer from a lack of linguistic commonality. The terms are not defined, and consequently derive whatever meaning the reader wishes to impart to them. Moreover, the circumstances under which a child may have representation are unclear, in that it is often a matter of unbridled judicial discretion whether a child may have an advocate.

As noted in the summary below, 15 states have statutes that specifically provide for a guardian ad litem in a divorce-related custody/visitation matter: Alabama, Florida, Georgia, Hawaii, Indiana, Kentucky, Massachusetts, Michigan, New Hampshire, New Jersey, New Mexico, North Dakota, Rhode Island, Texas, and Wisconsin. Yet, of these 15, only 2 require appointment of a guardian ad litem: New Hampshire and Wisconsin. In the other states, the decision is discretionary with the judge.

Five states require the appointment of a guardian ad litem when there are allegations of child abuse: Louisiana, Minnesota, Missouri, South Dakota, and Tennessee.

Only two other states require the appointment of a guardian ad litem where circumstances so warrant. In Oregon, a guardian ad litem must be appointed if requested by the child. In Vermont, a guardian ad litem must be appointed if the child is a witness.

Twenty states and the District of Columbia provide for the appointment of a "counsel for the child" in a divorce proceeding: Arizona, California, Colorado, Connecticut, Delaware, Iowa, Kentucky, Maryland, Michigan, Montana, Nebraska, Oklahoma, Oregon, Pennsylvania, Rhode Island, Texas, Utah, Vermont, Virginia, Washington, and the District of Columbia. Is this the same as a guardian ad litem, is this an attorney for the child’s wishes, or is it something else? The statutes do not say.

Finally, three states offer the court the choice of appointing either a guardian ad litem or counsel or both: Alaska, Illinois, and Ohio.

Alabama: Ala. Code 26-2A-52 (1992): At any point in the custody/visitation proceeding, a court may appoint a guardian ad litem to represent the interests of a minor if the court determines that representation of the minor otherwise would be inadequate.

Alaska: Alaska Stat. 25.24.310 (Michie 1996): The court may upon the motion of a party or its own motion appoint an attorney or the office of public advocacy to represent a minor. Upon notification, the court shall determine whether the minor should have legal representation. Instead of or in addition to the appointment of an attorney, the court may appoint an attorney or other person or the office of public advocacy to provide guardian ad litem services to the child, representing the child’s best interests.

Arizona: Ariz. Rev. Stat. Ann. 25-321 (West 1991): The court may appoint an attorney to represent the interests of a minor or dependent child with respect to his support, custody and visitation.

California: Cal. Fam. Code 3114 (West 1994): The court appointed investigator may recommend that counsel be appointed to represent the minor child. In making that recommendation, the court appointed investigator shall inform the court of the reasons why it would be in the best interests of the child to have counsel appointed.

Colorado: Colo. Rev. Stat. 14-10-116 (1997): The court may appoint an individual to serve as representative of the best interests of the children. The individual shall be an attorney.

Connecticut: Conn. Gen. Stat. Ann. 46b-54 (West 1995): The court may appoint counsel for any minor child or children of the parties if the court deems it to be in the best interests of the children. Counsel for the children shall be heard on all matters pertaining to the interests of the children.

Delaware: Del. Code Ann. tit. 13, 721(c) (1994): The court may, in the interests of the child, appoint an attorney to represent the child in custody proceedings.

District of Columbia: D.C. Code Ann. 16-918(b) (1997): In any proceeding wherein the custody of a child is in question, the court may appoint a disinterested attorney to appear on behalf of the child and represent his best interests.

Florida: Fla. Stat. Ann. 61.401 (West 1997): If the court finds it is in the best interests of the child, the court may appoint a guardian ad litem to act as next friend of the child, investigator, or evaluator, not as an attorney or advocate. The court in its discretion may also appoint legal counsel for a child to act as attorney or advocate; however, the guardian and the legal counsel shall not be the same person.

Georgia: Ga. Code Ann. 29-4-7 (1997): When a minor is interested in any litigation pending in any court and he has no guardian or his interest is adverse to that of his guardian, such court may appoint a guardian ad litem for the minor.

Hawaii: Haw. Rev. Stat. Ann. 571-46(8) (Michie 1997): The court may appoint a guardian ad litem to represent the interests of the child. Illinois: 750 Ill. Comp. Stat. Ann. 5/506 (West Supp. 1997): The court may appoint an attorney to represent the interests of a minor or dependent child with respect to his support, custody and visitation. The court may also appoint an attorney as the guardian ad litem for the child.

Indiana: Ind. Code Ann. 31-15-6-1, 31-15-6-3 (Michie 1997): A court may appoint a guardian ad litem, who shall represent and protect the best interests of the child.

Iowa: Iowa Code Ann. 598.12 (West 1996): The court may appoint an attorney to represent the interests of the minor child or children of the parties.

Kentucky: Ky. Rev. Stat. Ann. 403.090 (Michie Supp. 1996): In any action for divorce, the friend of the court shall make such investigation as will enable the friend of the court to ascertain all facts and circumstances that will affect the rights and interests of the children, and shall make a report to the judge setting forth recommendations.

Louisiana: La. Rev. Stat. Ann. 9:345 (West Supp. 1997): The court may appoint an attorney to represent the child if, after a contradictory hearing, the court determines that such appointment would be in the best interests of the child. The court shall appoint an attorney to represent the child if, in the contradictory hearing, any party presents a prima facie case that a parent or other person caring for the child has sexually, physically, or emotionally abused the child.

Maryland: Md. Code Ann., Fam. Law 1-202 (1991): The court may appoint counsel for a minor child.

Massachusetts: Mass. Gen. Laws Ann. ch. 215, 56A (West 1989): Any judge of a probate court may appoint a guardian ad litem to investigate the facts of any proceeding relating to the care, custody, or maintenance of a minor, and report in writing to the court.

Michigan: Mich. Comp. Laws Ann. 722.27(1)(e) (West Supp. 1997); Mich. Stat. Ann. 215.312(7)(1)(e) (Law. Co-op. Supp. 1997): The court may appoint a guardian ad litem or counsel for the child and assess the costs and reasonable fees against one or more parties.

Minnesota: Minn. Stat. Ann. 518.165 (West 1990): The court may appoint a guardian ad litem to represent the interests of the child. Where the court has reason to believe the child is a victim of abuse or neglect, the court shall appoint a guardian ad litem to represent the interests of the child. The guardian ad litem shall advocate for the best interests of the child.

Missouri: Mo. Ann. Stat. 452.423 (West 1997): The court may appoint a guardian ad litem in custody/visitation proceedings. The court shall appoint a guardian ad litem in any proceeding in which child abuse or neglect is alleged. The guardian ad litem shall be the legal representative of the child.

Montana: Mont. Code Ann. 40-4-205 (1997): The court may appoint a guardian ad litem to represent the interests of a minor dependent child with respect to the child’s support, parenting, and parental contact.

Nebraska: Neb. Rev. Stat. Ann. 42-358(1) (Michie Supp. 1996): The court may appoint an attorney to protect the interests of any minor children of the parties.

New Hampshire: N.H. Rev. Stat. Ann. 458:17-a (Supp. 1996): The court may appoint a guardian ad litem to represent the interests of the children of the marriage. If custody or visitation is disputed, the court shall appoint a guardian ad litem.

New Jersey: N.J. Stat. Ann. 9:2-4(c) (West 1993): The court, for good cause and upon its own motion, may appoint a guardian ad litem or an attorney or both to represent the minor child’s interests.

New Mexico: N.M. Stat. Ann. 40-4-8 (Michie 1994): In any proceeding for the disposition of children when custody of minor children is contested by any party, the court may appoint an attorney at law as guardian ad litem on the court’s motion or upon the application of any party to appear for and represent the minor children.

North Dakota: N.D. Cent. Code 14-09-06.4 (1991): Either party may petition the court for appointment of a guardian ad litem to represent the children. The court may appoint a guardian ad litem on its own motion. A guardian ad litem shall serve as an advocate of the child’s best interests.

Ohio: Ohio R. Civ. P. 75(B)(2) (1997): When it is essential to protect the interests of a child, the court may join the child of the parties as a party defendant and appoint a guardian ad litem and legal counsel, if necessary, for the child.

Oklahoma: Okla. Stat. Ann. tit. 10, 24 (West 1987): The court shall appoint counsel for the minor when the minor so desires.

Oregon: Or. Rev. Stat. 107.425(3) (1990): The court may on its own motion or on a motion of the parties appoint counsel for the children. However, if requested to do so by one or more of the children, the court shall appoint counsel for the children.

Pennsylvania: Pa. R. Civ. P. 1915.11 (1997): The court may appoint an attorney to represent the child.

Rhode Island: R.I. Gen. Laws 15-5-16.2(c) (1996): The court may appoint an attorney or guardian ad litem to represent the interests of a minor or dependent with respect to his support, custody, and visitation.

South Dakota: S.D. Codified Laws 25-4-45.4 (Michie 1997): The court may appoint an attorney to represent the interests of the child.

Tennessee: Tenn. R. Juv. P. 37 (1997): In any juvenile proceeding, the court may appoint a guardian ad litem for a child who is a party to the proceeding. In cases of alleged abuse of a child, the court shall appoint a guardian ad litem for the child.

Texas: Tex. Fam. Code Ann. 107.001 (West Supp. 1998): In a suit in which termination of the parent-child relationship is requested, the court shall appoint a guardian ad litem to represent the interests of the child; in any other suit, the court may appoint a guardian ad litem.

Utah: Utah Code Ann. 30-3-11.2 (1995): If it shall appear in the best interests of the child to have a separate exposition of the issues and personal representation for the child, the court may appoint counsel to represent the child throughout the action.

Vermont: Vt. Stat. Ann. tit. 15, 594 (1989): The court may appoint an attorney to represent the interests of a minor or dependent child; the court shall appoint an attorney for a minor child before the child is called as a witness.

Virginia: Va. Code Ann. 16.1-266 (Michie Supp. 1997): The court shall appoint an attorney-at-law as guardian ad litem to any child who is alleged to be abused or neglected. In all other cases, the court may appoint an attorney-at-law as guardian ad litem for the child if the court finds that the interests of the child are not otherwise adequately represented.

Washington: Wash. Rev. Code Ann. 26.09.110 (West 1997): The court may appoint an attorney to represent the interests of a minor child with respect to parenting.

Wisconsin: Wis. Stat. Ann. 767.045 (West 1993): The court shall appoint a guardian ad litem for a child if the court has special concern for the welfare of the child, or the legal custody or physical placement of the child is contested.

1997 National Legal Research Group, Inc.


   
COMMUNITY PROPERTY – Community property states treat all income or property that was acquired during the marriage, with the exception of gifts or inheritances, as belonging to both partners. Each spouse has an undivided one half interest in the whole asset, regardless of whose name is on the title. The nine community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.
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This section will provide you with the state divorce laws addressing the following issues, but not limited to; Residency Requirements, Grounds for Divorce or Dissolution of Marriage, Legal Separation, Property Division, Child Custody, Child Support, Visitation, and Spousal Support or Alimony.
 

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