MALPRACTICE LIABILITY OF A GUARDIAN AD LITEM
© 1995 National Legal Research Group, Inc.
We will briefly address the malpractice liability of an attorney who acts as a guardian ad litem in a divorce proceeding or related custody or support proceeding. See also A. Haralambie, The Child's Attorney (ABA 1993); M. Soler, Representing the Child Client (Mathew Bender 1987); Standards for Guardians Ad Litem in Custody and Visitation Cases (American Academy of Matrimonial Lawyers 1994). We will not examine those cases dealing with liability of a guardian ad litem in a personal injury or other nondomestic type case.
Generally, a guardian ad litem is a person who stands in the place of the party deemed to be legally incompetent. The guardian ad litem has authority only in the context of the litigation and is thus to be distinguished from a guardian of the person, who has responsibility over the ward. A guardian ad litem representing an infant in a divorce, custody, support, or abuse and neglect case is regarded as an officer or agent of the court, charged with presenting to the court evidence concerning the child's best interests. The guardian ad litem is not, strictly speaking, the child's advocate, bound to present to the court the child's wishes or legal position. 42 Am. Jur. 2d Infants § 161 at 152 (1969). As stated in one treatise:
The distinguishing feature of [an] attorney appointed as guardian ad litem . . . is that he or she makes decisions in the case based on that attorney's view of what is in the best interests of the client. The attorney need not be bound procedurally or substantively by the child's expressed desires. In this regard, the attorney acts almost as much as social worker as attorney. However, the guardian ad litem should consider the child's wishes and should inform the court of those wishes even when they conflict with the guardian ad litem's position.A. Haralambie, The Child's Attorney at 6 (ABA 1993); accord, e.g., In re Marriage of Barnthouse, 765 P.2d 610 (Colo. Ct. App. 1988), cert. denied, 490 U.S. 1021 (1989) (attorney appointed to represent interests of child with respect to custody, support, and visitation in a dissolution of marriage proceeding has the obligation to present all evidence concerning the child's welfare and cannot simply parrot the child's wishes); In re Boyle's Case, 136 N.H. 21, 611 A.2d 618 (1992) (guardian ad litem does not act as legal counsel for child, but as party to proceedings); see also M. Fineman, The Role of Guardians Ad Litem in Custody Cases in Who Speaks For the Children? A Handbook of Individual and Class Child Advocacy (J. Westman ed. , 1991); Note, Lawyering for the Child: Principles of Representation in Custody and Visitation Disputes Arising from Divorce, 87 Yale L.J. 1126 (1978); Collins on Behalf of Collins v. Tabet, 111 N.M. 391, 806 P.2d 40 (1991) (excellent discussion of various roles of guardians ad litem). A guardian ad litem, in his or her role as advocate for the best interests of the child, generally undertakes the following responsibilities:
A. Haralambie, The Child's Attorney at 43-3 (ABA 1993).
- make an adequate investigation of the facts;
- meet and confer with the child;
- review the records and reports in the case;
- research the applicable law;
- learn about placement and services options;
- obtain appropriate disclosures;
- maintain contact with the child and his or her caretakers;
- adequately participate in court actions;
- preserve or pursue tort and other legal claims to which the child may be entitled;
- advocate the child's expressed wishes where the guardian has that duty;
- exercise reasonable skill and care in other professional areas.
Because a guardian ad litem is operating both as an officer of the court and as a representative of the child, however, the failure to undertake these responsibilities will generally not support an attorney malpractice action. Rather, a guardian ad litem is generally afforded quasi-judicial immunity for actions taken in furtherance of his appointment responsibilities. Where, however, the guardian ad litem's conduct is more appropriately characterized as that of a legal advocate for the child, such quasi-judicial immunity does not attach. Rather, in this case, the guardian ad litem is liable for negligence. As a corollary to this rule, a guardian ad litem is absolutely immune for § 1983 or Bivens-type liability. A few states, in the minority, have held that a guardian ad litem is liable for malpractice negligence.
Immunity from Actions
Absolute quasi-judicial immunity was afforded the guardian ad litem in Short v. Short, 730 F. Supp. 1037 (D. Colo. 1990). In that case, the guardian ad litem was charged with negligence in connection with the performance of her duties as guardian. It was not alleged that the guardian had acted outside her role as guardian ad litem, or that she had conducted herself maliciously or in bad faith. Rather, the complaint was predicated on malpractice.
The court stated that the guardian ad litem functions as an "agent of the court." Unlike court-appointed counsel, a guardian ad litem must render an impartial decision and thus serves as an adjunct of the court. Stating that the need for an independent guardian ad litem is particularly compelling in custody disputes, the court concluded that the guardian's judgment must remain impartial and unclouded by the fear of liability to a disgruntled parent. Rather, sufficient judicial mechanisms exist to prevent the abuse, misconduct, and irresponsibility of guardians ad litem.
Quasi-judicial immunity was also granted in Tindell v. Rogosheske, 428 N.W.2d 386 (Minn. 1988). In that case, a paternity and child support action, it was alleged that the guardian ad litem had negligently failed to investigate whether a child support settlement agreement was in the child's best interests. The court held that under such circumstances, the guardian ad litem was acting in a quasi-judicial capacity. A guardian ad litem is an officer of the court, the court stated, and the guardian ad litem's duty is to act within the course of judicial proceedings in furtherance of the child's best interests. Hence, immunity is necessary to avoid harassment from disgruntled parents who may take issue with the guardian's actions. Thus, a guardian ad litem is absolutely immune from negligence liability for acts undertaken within the scope of the exercise of statutory responsibilities. In State ex rel. Bird v. Weinstock, 864 S.W.2d 376, 382 (Mo. Ct. App. 1993), the court adopted the "functional" inquiry test appropriate to quasi-judicial immunity and granted absolute immunity to guardians ad litem, as one of "various individuals whose adjudicatory functions or other involvement with the judicial process [are] deemed to warrant protection from harassment, intimidation or other interference with impartial decision making."
In Penn v. McMonagle, 60 Ohio App. 3d 149, 573 N.W.2d 1234, motion overruled, 58 Ohio St. 3d 704, 569 N.E.2d 512 (1990), a father filed a negligence action against the guardian ad litem who represented his children during divorce proceedings. Again, the court held that a guardian ad litem was entitled to absolute immunity from legal actions arising out of the performance of his or her duties as guardian. The court specifically rejected the argument that a guardian ad litem should be afforded only qualified "good faith immunity," as opposed to absolute quasi-judicial immunity. The court stated that the activities of a guardian ad litem are judicial in nature and therefore deserving of the protection afforded by full immunity.
In Gerber v. Peters, 584 A.2d 605 (Me. 1990), the husband in a divorce action brought an action against his child's guardian ad litem alleging professional malpractice. There, the court held that a guardian ad litem owes no duty of care to the parents of an infant. Rather, the only duty of the guardian ad litem is to the court, and the scope of that duty lies within the parameters of the order of appointment.
As a closing note to these cases, it must be remembered that even in the absence of the cloak of quasi-judicial immunity, a parent would have an exceedingly difficult obstacle to surmount in suing a child's guardian ad litem for malpractice: privity. In representing a client, an attorney is not liable to injuries to third parties unless caused by fraud, malice, or other similar tortious conduct. 2 R. Mallen & J. Smith, Legal Malpractice § 22.4 (3d ed. 1989). Thus, a guardian ad litem owes no duty to the parent of the child. Gerber v. Peters, 584 A.2d 605 (Me. 1990); Delbridge v. Office of Public Defender, 238 N.J. Super. 288, 569 A.2d 854 (Law Div. 1989); see also Bowman v. Two, 104 Wash. 2d 181, 704 P.2d 140 (1985) (mother's action for interference with parent/child relationship against child's attorney failed for lack of duty).
Civil Rights Actions
In an effort to escape the quasi-judicial immunity afforded attorneys in the malpractice context, some disgruntled parents have tried to assert a federal civil rights claim, i.e., 42 U.S.C. § 1983, against guardians ad litem. These claims have generally fared no better.
In one of the first cases to discuss the immunity of a guardian ad litem, Kurzawa v. Mueller, 732 F.2d 1456 (6th Cir. 1984), the court discussed the Supreme Court case of Briscoe v. LaHue, 460 U.S. 325 (1983). Briscoe held, the Kurzawa court stated, that "witnesses and other persons who are integral parts of the judicial process are entitled to absolute immunity." Kurzawa v. Mueller, supra, 732 F.2d at 1458. Consequently, Baldwin, who functioned as guardian ad litem for Cass Kurzawa, must act in the best interests of the child he represents. Such a position clearly places him squarely within the judicial process to accomplish that goal. A guardian ad litem must also be able to function without the worry of possible later harassment and intimidation from dissatisfied parents. Consequently, a grant of absolute immunity would be appropriate. A failure to grant immunity would hamper the duties of a guardian ad litem in his role as advocate for the child in judicial proceedings. Id. In re Scott County Master Docket, 618 F. Supp. 1534 (D. Minn. 1985), aff'd sub nom. Myers v. Morris, 810 F.2d 1437 (8th Cir.), cert. denied, 108 S. Ct. 97 (1987), reached the same result, relying on Briscoe and Kurzawa, as did Ward v. San Diego County Department of Social Services, 691 F. Supp. 238 (S.D. Cal. 1988).
More recently, in Gardner by Gardner v. Parson, 874 F.2d 131 (3d Cir. 1989), and Cok v. Cosentino, 876 F.2d 1 (1st Cir. 1989), the Courts of Appeals for the Third Circuit and the First Circuit agreed that a guardian ad litem has absolute quasi-judicial immunity for acts undertaken as guardian. In Gardner by Gardner v. Parson, supra, Patricia Levins was appointed the guardian ad litem of a retarded teenager. The grandmother later sued the guardian for § 1983 violations regarding the teenager's care. Again relying on Briscoe and Kurzawa, the court held that a guardian ad litem, as an officer of the court, was immune from civil rights liability:
We would agree that a guardian should be absolutely immune when acting as an "integral part  of the judicial process." . . . Furthermore, Supreme Court precedent in analogous cases and reasoning of the soundly decided circuit cases, discussed above, counsel the adoption of a functional approach to determining whether a guardian ad litem is absolutely immune. Under this approach, a guardian ad litem would be absolutely immune in exercising functions such as testifying in court, prosecuting custody or neglect petitions, and making reports and recommendations to the court in which the guardian acts as an actual functionary or arm of the court, not only in status or denomination but in reality. This does not exhaust the list of functions which would be absolutely immune, and each function would have to be analyzed on a case-by-case basis.874 F.2d at 146.
In Cok v. Cosentino, 876 F.2d 1 (1st Cir. 1989), an ex-wife sued the family court justice who presided over her divorce proceeding and the guardian ad litem and the court-appointed conservator for damages allegedly suffered as a result of their improper actions in the disposition of marital assets. The court held that a guardian ad litem typically gathers information, prepares a report, and makes a recommendation to the court regarding a custody disposition. As a person who functions as an agent of the court in carrying out the orders of a judge, the guardian ad litem is entitled to judicial immunity.
Most recently, in Fleming v. Asbill, 42 F.3d 886 (4th Cir. 1994), the court again affirmed the § 1983 immunity enjoyed by a guardian ad litem. Delbridge v. Office of Public Defender, 238 N.J. Super. 288, 569 A.2d 854 (Law Div. 1989), is the only state case to discuss a federal civil rights cause of action. In that case, parents whose parental rights were terminated brought an action against the law guardian program which represented the interests of the children. There, the court held that the law guardian program was cloaked in absolute judicial immunity because it was an integral part of the judicial process. These cases may leave an attorney with the impression that a guardian ad litem is always immune from suit for his or her acts. This is not the case. Section 1983 can attach where the guardian ad litem acts outside his or her quasi-judicial function. This was explained in Kohl v. Murphy, 767 F. Supp. 895 (N.D. Ill. 1991). In that case, according to the plaintiff, the guardian ad litem undertook the nontraditional acts of granting interviews to CNN, appearing on television interview shows, and writing an article for Good Housekeeping Magazine. The court stated that such acts might very well fall outside the parameters of the proper function of a guardian ad litem:
These cases [Myers v. Morris and Cok v. Cosentino] applied the immunity doctrine only after determining that the GAL was functioning within his quasi-judicial role when he engaged in the disputed acts.Id. at 900. Thus, where a guardian ad litem was not acting within his or her quasi-judicial capacity when the acts complained of took place, the guardian may be subject to liability.
Minority Rule: No Immunity
In Fleming v. Asbill, 42 F.3d 886 (4th Cir. 1994) (applying South Carolina law), the court recognized that a cause of action for malpractice negligence may be asserted against a guardian ad litem. There, the court, relying on Simpson v. Doggett, 159 S.C. 294, 156 S.E.771 (1930), stated that South Carolina common law makes it clear that a guardian ad litem is liable to his ward for the negligent performance of his duties. Moreover, S.C. Code Ann. § 20-7-127 provides that a lay guardian ad litem may be held answerable to his ward for gross negligence. If a lay volunteer can be liable for gross negligence, then a paid professional can be held liable for negligence as well.
A similar result was reached in Marquez v. Presbyterian Hospital, 159 Misc. 2d 617, 608 N.Y.S.2d 1012 (Sup. Ct. 1994). In that case, the court held that where a guardian ad litem acts in his or her capacity as an arm of the court, "the proper standard where there are very young children, and the guardian ad litem role predominates, is that liability should attach only if there is a showing that the law guardian failed to act in good faith in exercising discretion or failed to exercise any discretion at all." 608 N.Y.S.2d at 1018. A guardian ad litem, might, therefore, be held accountable in negligence while acting within the quasi-judicial function.
Family law practitioners who undertake the responsibility of guardian ad litem may rest easier that they need not face the wrath of disgruntled parents or relatives over the disposition of a custody proceeding. Perhaps this immunity will encourage more attorneys to undertake the responsibility willingly and without compensation.
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