Guardian Ad Litem

A guardian appointed by the court to represent the interests of INFANTS, the unborn, or incompetent persons in legal actions.

Guardians are adults who are legally responsible for protecting the well-being and interests of their ward, who is usually a minor. A guardian ad litem is a unique type of guardian in a relationship that has been created by a court order only for the duration of a legal action. Courts appoint these special representatives for infants, minors, and mentally incompetent persons, all of whom generally need help protecting their rights in court. Such court-appointed guardians figure in divorces, child neglect and abuse cases, paternity suits, contested inheritances, and so forth, and are usually attorneys.

The concept of guardian ad litem grew out of developments in U.S. law in the late nineteenth century. Until then, the COMMON LAW had severely restricted who could bring lawsuits in federal courts; it was easiest to sue in states through EQUITY courts. Changes in the 1870s relaxed these standards by bringing federal codes in line with state codes, and in 1938, the Federal Rules of CIVIL PROCEDURE removed the old barriers by establishing one system for civil actions. Rule 17(c) addresses the rights of children and incompetent persons in three ways. First, it permits legal guardians to sue or defend on the behalf of minors or incompetent individuals. Second, it allows persons who do not have such a representative to name a "next friend," or guardian ad litem, to sue for them. And third, it states that federal courts "shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for [his or her] protection." In practice, the courts have interpreted this last provision broadly: the term infants is taken to mean unborn children and all minors. In addition, courts can exercise discretion; they are not required to appoint a guardian ad litem.

In the 1970s and 1980s, the importance of the guardian ad litem grew in response to increased concern about children's welfare. Two social developments brought about this growth: a rise in DIVORCE cases, and greater recognition of the gravity of CHILD ABUSE and neglect. Because states had generally modeled their civil court processes on the Federal Rules of Civil Procedure, the role of guardian ad litem was well established. But now, states began moving toward stronger legislation of their own. By the 1990s, many states had enacted laws specifying the guardians' qualifications, duties, and authority. Equally important, these laws spelled out requirements for the appointment of guardians ad litem in abuse cases. As a leader in the area, Florida enacted legislation in 1990 providing funding for the training of guardians ad litem (State of Florida Guardian Ad Litem Program Guidelines for Family Law Case Appointment, Fla. Stat. § 61.104). In 1993, after hearing an appeal in a particularly horrifying abuse case, the Supreme Court of West Virginia set forth guidelines for guardians ad litem in its decision (In Re Jeffrey R. L., 190 W. Va. 24, 435 S.E.2d 162 [1993]).

Guardians ad litem have extensive power and responsibility. Their duties are greatest in cases involving children, where they investigate, attend to the child's emotional and legal needs, monitor the child's family, and seek to shield the child from the often bruising experience of a lawsuit. Their function as officers of the court is also extensive: in addition to compiling relevant facts, interviewing witnesses, giving testimony, and making recommendations to the court on issues of custody and visitation, they ensure that all parties comply with court orders. Given the rigors of the task, which is often voluntary or low paid, it is not surprising that courts have traditionally had difficulty finding adequate numbers of qualified individuals to serve as guardians ad litem.

In the mid-1990s, the role of guardian ad litem provoked new concerns. Whereas many attorneys perceived a need for guardians ad litem to be appointed in all CHILD CUSTODY proceedings, others expressed caution about the risk of lawsuits. Particularly for attorneys serving as guardians ad litem in divorce cases, this risk was high: parents upset with the result of a custody ruling might sue the guardian, just as a number of parties had in the 1980s brought action against government agencies involved in child welfare cases. Lawyers worried that the guardian ad litem system had become potentially dangerous for those whose rights it had been designed to protect, some of society's weakest members.