What is a Guardian ad Litem?

By Paule, Camazine & Blumenthal, P.C. of Paule, Camazine & Blumenthal, P.C. posted in Guardian ad Litem on Wednesday, November 9, 2011.

by David M. Slaby

A guardian ad litem is a court appointed legal representative of the child or children involved in a contested custody proceeding.  Missouri statute § 452.423 requires the court to appoint a guardian ad litem in any proceeding in which child abuse or neglect is alleged by a party.  However, the court also has discretion in any child custody proceeding where custody, visitation, or support of a child is a contested issue to appoint a guardian ad litem.

Reforms regarding requirements of a guardian ad litem that went into effect on September 1, 2011 now make it mandatory that a guardian ad litem have a law license.  Since the guardian ad litem is the legal representative of the child, this attorney may examine, cross-examine, subpoena witnesses, or offer testimony.  The guardian ad litem is required to conduct all necessary interviews of persons having contact with or knowledge of the child to ascertain the child’s wishes, feelings, attachments, and attitudes.  The guardian is not required to interview the child unless it is appropriate to do so.  Appropriateness can be gauged or determined by the age of the child or the emotional status or maturity of the child.

In any case where a guardian ad litem is appointed, both of the parties have one automatic right to disqualify the individual appointed so long as a written application to disqualify the guardian is filed with the court within 10 days of the appointment.  Either party may be entitled to additional disqualifications of a guardian if the party attempting to disqualify the guardian can prove good cause exists to do so.

If the appointing judge finds that a guardian ad litem is failing to faithfully perform his or her duties, the court can discharge the guardian ad litem and appoint a different person.

The judge must award the guardian ad litem a reasonable fee that is determined by the court.  The court has discretion to order the parties to pay the guardian ad litem directly, to determine how much either party shall pay to the guardian ad litem, and can make an order setting a timeline to make the payment.  If a party fails to abide by the court’s order concerning paying the guardian ad litem, the court may find the party to be in contempt of court.

It is important to know what a guardian is and how a guardian ad litem may be involved in a custody case.  This article is intended as a brief summary of what a guardian ad litem is and how he or she may impact a custody case.  You should talk to your attorney about the specifics of your case and the impact a guardian ad litem may have in your case.

Disclaimer

David M. Slaby

David M. Slaby

Experienced St. Louis trial attorney David Slaby has handled cases in all areas including general civil litigation, family, juvenile, and criminal law, representing victims of personal injury and negligence, probate matters, guardianships of children and adults, worker’s compensation, and appellate work in his over fifteen years of legal practice.

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