Child custody matters can become complicated when parents disagree on an arrangement. Unfortunately, children sometimes get stuck in the middle. In contentious cases that involve a child’s best interests, a guardian ad litem may be necessary to advocate for the child. While a guardian ad litem can either be requested by a parent or appointed by a judge, they are typically only used in cases that involve complex custody issues — such as those concerning a child’s best interests.
What is Child Custody?
Child custody is a term with which most people are familiar. However, it encompasses much more than where a child lives. Custody comes in two parts — physical custody and legal custody. While physical custody refers to where the child resides and who cares for their daily needs, legal custody refers to who makes decisions on the child’s behalf concerning their welfare, healthcare, education, and religious upbringing.
Courts typically favor joint custody arrangements when possible. In these situations, both parents share parenting responsibilities and spend an equal amount of time with the child. Either type of custody can be joint — or custody can be sole and belong only to one parent. In sole custody situations, the other parent will typically have visitation rights — also known as parenting time — unless the child’s welfare would be placed at risk.
What is a Guardian ad Litem?
A guardian ad litem is a person appointed by the court in a custody case to protect the child’s best interests. They are a neutral party who might be a licensed attorney — but in some cases, they may be a non-attorney, such as a social worker, who underwent guardian ad litem training in order to help children. During the court proceedings, it is the guardian ad litem’s job to serve as the child’s advocate and be their voice in court. In a divorce case, one or both parents are generally responsible for paying the guardian ad litem’s fees.
How Does a Guardian ad Litem Protect a Child’s Best Interests?
The main purpose of having a guardian ad litem in a custody case is to ensure the child’s best interests are met. To obtain the information necessary to protect the child’s best interests, they may speak with the child without the parents present, interview each parent and other family members, and meet with the child’s counselors or teachers. They may also review the child’s school records and medical records to provide them with insight into the needs of the child.
A guardian ad litem might also look into the dynamics of the family, including each parent’s ability to care for the child, and factors concerning the child’s well-being. Other things they may evaluate in a custody case include:
- The child’s welfare when they are in the care of each parent
- Whether there is any risk to the child’s health or welfare when they are in the care of each parent
- The child’s relationship with their siblings and other members of the household
- Whether the child has any special needs
- Any history of domestic violence or substance abuse
- The stability of each parent’s home
- The child’s custody preferences
After gathering information about the child’s situation, the guardian ad litem can present their report to the judge. Typically, because they speak on the child’s behalf, there is no need for the child to testify in court.
When is a Guardian ad Litem Necessary in a California Custody Case?
There is no definitive rule regarding when a guardian ad litem is necessary in a child custody case. However, a judge will typically appoint one when there are allegations of abuse, neglect, or other serious issues that would place the child in harm’s way. In addition, a parent can request that a guardian ad litem be appointed for the child — but there is no guarantee a judge will grant this request unless more insight is needed concerning the child’s situation.
It is more likely that a judge will appoint a guardian ad litem in a contested custody case in which the judge believes that joint custody would not be appropriate. The level of the guardian ad litem’s involvement in the case will depend on the complexity of the issues in the case. In some custody matters, a guardian ad litem can quickly look into the family situation and provide a recommendation to the judge. But cases with complicated issues can require extensive investigation and become much more time-consuming.
Contact an Experienced Fresno Divorce and Family Law Attorney
If you are facing a child custody issue, it’s essential to have a knowledgeable family law attorney by your side every step of the way. Providing skillful representation and compassionate counsel for over 20 years, The Law Offices of Rick D. Banks is dedicated to helping clients throughout Fresno and the surrounding areas achieve the best possible outcomes in their family law cases — and ensure the best interests of their children are met. To schedule a no obligation consultation, call (559) 272-8359.