A Guardian Ad Litem (referred to as “GAL” for short) is a person who acts as an advocate for a child or incapacitated person when the court is concerned about his or her welfare. In short, the GAL serves as a representative of the child or incapacitated person and acts as an advocate for that person throughout the legal proceedings. In family court, there are a few rare instances where an adult will have a guardian appointed. Below, we focus on GALs appointed for kids in a family court case—not juvenile court case–setting.
Family Court Case
The phrase “family court case” refers to the types of proceedings set forth in the Comment to Rule 301 of the Minnesota Rules of Family Court Procedure, including, but not limited to, marriage dissolution, legal separation, and annulment proceedings; child custody enforcement proceedings; domestic abuse and harassment proceedings; support enforcement proceedings; contempt actions in family court; parentage determination proceedings; and other proceedings that may be heard or treated as family court matters.
It should be noted that a guardian ad litem is not the same thing as a legal guardian and does not provide a home for the child, nor does that person have any control over the child or incapacitated person’s money or property.
A guardian ad litem is also not a lawyer for either party or the child. Appointment of a guardian ad litem is governed by the Rules of Guardian Ad Litem Procedure in Juvenile and Family Court. If the guardian ad litem who is appointed to your case is not an attorney, the guardian ad litem may have an attorney to represent him or her in the proceedings. The procedure for appointing a GAL and who the GAL might be differs from county to county, so it is a good idea to check with someone who has knowledge of your particular county if a GAL is appointed or you think one should be appointed.
If there is a GAL on your case, any pleadings that are filed should be served on the guardian too. The guardian ad litem’s role must be clearly defined by the court’s order.
In some cases, the GAL is actually made a party to the case. When this happens the GAL has the right to:
- legal representation;
- be present at all hearings;
- conduct discovery;
- bring motions before the court;
- participate in settlement agreements;
- subpoena witnesses;
- make argument in support of or against the petition;
- present evidence;
- cross-examine witnesses;
- request review of the referee’s findings and recommended order;
- request review of the court’s disposition upon a showing of a substantial change of circumstances or that the previous disposition was inappropriate;
- bring post-trial motions; and
- appeal from orders of the court.
An appointment of a guardian can be mandatory or permissive. A mandatory appointment occurs when the minor child is a victim of domestic child abuse or neglect, as those terms are defined in sections 260C.007 and 626.556, respectively. A permissive appointment of a GAL is up to the discretion of the court. (See Minn. Stat. 518.165).
The GAL will make recommendations to the court that he or she believe are in the child’s best interest. The GAL should not take the place of a custody evaluator, although that distinction is less common in certain counties.