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What you Need to Know About a Guardian ad Litem

What you Need to Know About a Guardian ad Litem | Georgia Divorce and Family Law AttorneysGeorgia courts frequently use a Guardian ad litem to help determine what is in the ‘child’s best interest’ when making decisions concerning child custody and visitation. To determine what is in the child’s best interest, a family law judge has the option of appointing a ‘guardian ad litem’ to attain an objective view. A guardian ad litem is an officer of the court (usually an independent practicing Georgia family law and divorce attorney) who helps the court make determinations on child custody issues, visitation and others that concerns the child involved. This article provides on answers to a few commonly asked questions regarding a guardian ad litem.

What is a guardian ad litem in Georgia?

A guardian is different from a guardian ad litem (although many people including judges and lawyers call a guardian ad litem ‘guardian’ for short) . A guardian or custodian has custody of the child and acts as the parent, making decisions about a child – such as where the child lives and how the child is brought up – and pays for the child’s needs. On the other hand, a guardian ad litem works with the court to find out what is in the child’s best interests during the pendency of a proceeding. “Ad litem” is a Latin word meaning “for the lawsuit”.

There are different kinds of guardians ad litem for different kinds of cases. In some cases, the judge names a guardian ad litem to work with a child or a person who has a disability that makes it hard for them to understand a case that involves them. In other cases, a guardian ad litem may be appointed to represent an abused or neglected child in a child dependency proceeding. A child dependency proceeding (in other words, juvenile dependency proceeding) determines whether a child’s parent or guardian is abusive or neglectful. A guardian ad litem may investigate and stand for the child’s best interests.

Who may serve as a guardian ad litem in Georgia?

Guardian ad litem can be either an attorney or other qualified professional appointed by the court. The child’s attorney may serve as a guardian unless or until a conflict of interest arises. [O.C.G.A. § 15-11-104(b)]. In the case of a non-attorney, Georgia law requires the court to appoint a Court Appointed Special Advocate (CASA) volunteer to serve as a guardian ad litem “whenever possible”. [O.C.G.A. § 15-11-104(d)]. A CASA may be appointed in addition to an attorney serving as the child’s Guardian ad litem. [O.C.G.A. § 15-11-104(d)]. There are 2,400 CASA volunteers in Georgia. [See, Georgia CASA website, https://www.gacasa.org/]. It is also required that before the appointment as a guardian ad litem, such person “shall have received training … administered or approved by the Office of the Child Advocate.” [O.C.G.A. § 15-11-104(f)].

When will a guardian ad litem be appointed?

A guardian ad litem is appointed when the court has reasonable cause to suspect the parenting issues involve a child’s safety or the best interest of the child warrants further investigation. In family court, the judge must appoint a guardian ad litem if the judge thinks the child has been hurt, threatened, or neglected. In juvenile court, the just must name a guardian ad litem in cases about a child who is neglected, in foster care, or a child in need of protective services. In other cases, the judge can, but does not have to, appoint a guardian ad litem. The specific reasons for the appointment are often listed in the Order appointing the guardian ad litem.

What does a Georgia guardian ad litem do?

A guardian ad litem represents the best interests of a minor child. In representing the child’s best interest, it is the responsibility of a court appointed guardian to assist the court and the parents in reaching decisions concerning the custody, visitation and other issues concerning the child involved in the action. Guardians ad litem aid the court by investigating the background, living conditions, family conditions, and any other matters relating to the child or children in order to make a recommendation to the court regarding what custody or visitation arrangements would be in the best interest of the child or children involved. [Georgia Uniform Superior Court Rule 24.9(3)].

A guardian ad litem may request all records relating to the minor child from the Clerk of the Court in any county or jurisdiction, other social and human service agencies, the Department of Family and Children Services, and the Juvenile Court. The guardian may also examine all records maintained by any school, financial institution, hospital, doctor or other mental health provider, any other social or human service agency or financial institution pertaining to the child. A written release or court order is necessary, however, for the guardian to access confidential records. [Georgia Uniform Superior Court Rule 24.9(4)].

In addition to collecting and reviewing records and documentation concerning the child involved, the guardian ad litem may also seek the examination of the child’s residence, the child and the child’s parents. The guardian may also seek the examination of the child, the parents, or anyone seeking custody of the child by a medical or mental health professional. [Georgia Uniform Superior Court Rule 24.9(4)].

After completing the investigation, the guardian ad litem is required to file a “written report” detailing their findings and recommendations at such time. [Georgia Uniform Superior Court Rule 24.9(4)]. At trial, the report shall be admitted into evidence for direct evidence and impeachment purposes, or for any other purposes allowed under Georgia law. The guardian is also expected to be called as the Court’s witness at trial. The guardian may testify as to the foundation provided by witnesses and sources, and the results of its investigation, including a recommendation as to what is in the child’s best interest. [Georgia Uniform Superior Court Rule 24.9(7)]. In Georgia, guardian fees generally begin around $200.00 per hour

Is there a fee for appointing a guardian ad litem? If so, who pays for the guardian ad litem?

Guardians ad litem may work free but oftentimes they charge a fee for their services. As most guardians ad litem are attorneys, they often charge their standard hourly rate as compensation for the work they perform as a guardian ad litem. It is within the judge’s discretion to determine the amount of fees awarded to the guardian and how much each party will pay the fees. [Georgia Uniform Superior Court Rule 24.9(8)]. Typically, however, courts allow guardians to set their own hourly fee based on their experience. In Georgia, guardian fees generally begin around $200.00 per hour, specific hourly fees varying depending on the guardian’s experience, relative expertise, and the number of years that he or she has been serving as a guardian ad litem.

It is common for the parties to split the guardian fees equally. Parties may agree between themselves concerning how to apportion the fees, or the judge may order how payment of the fees are apportioned between the parties. If the judge determines that an equal split of the fees is not appropriate, he or she may order other apportionment alternatives. For instance, if there is an extreme income disparity between the parties to a divorce or child custody matter, the judge may order one party to pay the full amount of the guardian ad litem fees.

Parents should remember that a guardian ad litem represents your minor child’s interest, not you or your spouse’s. If you are involved in a divorce case with a minor child, be sure to speak with an experienced attorney regarding your own rights in a family case.

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