There are many different types of guardians. In some cases, the guardian is a close family relative. A guardian ad litem, however, is a little different. A court, when necessary, appoints a guardian ad litem (GAL) for a child when divorce or parental rights are at stake. The guardian should be a neutral third-party, which means parents, family, and close friends usually are not appointed in divorce or custody cases. More often than not, an attorney is appointed to this role.
Courts generally consider appointing a guardian ad litem for a child in custody and other types of related cases:
- If there are concerns a parent has addiction problems or is abusive
- To avoid having a child testify in open court when it is important to get information from the child about his family relationships
- If the parents differ on their versions of key parts of a case
- Where there is a lot of evidence to review
The GAL appointment process
Tennessee authorizes the appointment of a GAL for a child in two separate ways. The first way applies to certain types of juvenile court cases. The second, the Appointment of Guardians Ad Litem in Custody Proceeding, is governed by Tennessee Supreme Court rule 40A.
Custody proceeding are court proceedings in which legal and physical custody are determined. Access to a child, visitation, and parenting are also decided. Custody proceedings can be part of or related to proceedings during or after a divorce, in contested adoptions, for paternity proceedings, and where there is suspected or proven domestic violence.
The court Rule specifically states: “’Guardian Ad Litem’ means a licensed attorney appointed by the court to represent the best interests of a child or children in a custody proceeding.” Courts work to appoint a GAL who has the necessary skills, experience, and impartiality
Generally, courts are focused on the best interests of the child. A GAL can be appointed at any time during the custody dispute. Since parents can generally make good decisions for their children, courts appoint a guardian ad litem sparingly.
The court, by Tennessee Supreme Court rule 40A, considers the following factors when deciding if a GAL is needed:
“(1) the fundamental right of parents to the care, custody, and control of their children.
(2) the nature and adequacy of the evidence the parties likely will present;
(3) the court′s need for additional information and/or assistance;
(4) the financial burden on the parties of appointing a guardian ad litem and the ability of the parties to pay reasonable fees to the guardian ad litem;
(5) the cost and availability of alternative methods of obtaining the information/evidence necessary to resolve the issues in the proceeding without appointing a guardian ad litem; and
(6) any alleged factors indicating a particularized need for the appointment of a guardian ad litem”
The important thing to remember about GALs is that they are not the “enemy.” These are men and women whose sole priority is the welfare of your children. If a judge appoints a GAL in your case, it is because he or she wants to ensure that your child’s needs are being met. You’ll want to make sure that you answer his or her questions honestly, to prove that your goals are aligned with the best interest of your child.
At the Law Offices of LaFevor & Slaughter, our Knoxville custody and family attorneys understand when children should have separate legal counsel to protect their interests – especially when parents can’t get along with each other. For strong custody representation for you and your children, call us at 865.272.4454 or complete our contact form to schedule a free consultation. We represent parents and children throughout Tennessee.