Usually, a law guardian is a courtroom advocate also known as an attorney ad litem. That’s the answer to what is a legal guardian and the kind we’ll focus on in this post.
A legal guardian could also be an everyday caregiver. This individual serves in loco parentis, usually if both parents are dead or legally incompetent. This guardian is usually temporary in an incompetency case and permanent in a deceased-parents case.
The Definition of a “Law Guardian”
In both situations, a court appoints a guardian to decide matters on behalf of the ward. A guardian ad litem (for purposes of a lawsuit) only has this authority in a specific matter, usually a divorce or other family law matter.
General guardians have, well, general powers, until the court revokes them. Frequently, an aunt, uncle, or other such relative is a general guardian. This arrangement keeps family ties alive.
What are the Duties of a Law Guardian?
Quite simply, a law guardian ad litem is a lawyer for the child or children in a case, subject to the factors discussed below. In general, lawyers:
- Evaluate cases,
- Investigate facts,
- Advise clients,
- Speak for clients in court, and
- Give them a voice during settlement negotiations.
In most jurisdictions, a law guardian also files a written report with the court. This report mostly covers child custody and visitation issues. The report concludes with a recommendation in each area.
To prepare these reports, and adequately serve their clients, law guardians have broad powers to review school records, talk to teachers, review medical records, interview doctors, talk to neighbors, and otherwise gather as much information as possible.
Some parents find these efforts intrusive or even insulting. But generally, the more thorough a report is, the better it reflects the best interests of the child. In the end, that’s what everyone wants.
Frequently, a law guardian runs interference between hostile parents. This duty often causes controversy. Many law guardians choose sides rather than remain objective. Additionally, many new family law attorneys cut their teeth as law guardians. So, these individuals are often rather inexperienced.
The judge has the power to appoint a law guardian. But in most cases, the parents can object to that appointment if the lawyer is inexperienced or appears biased.
Later in the case, at trial, attorney ad litems can call and cross-examine witnesses. They can also introduce and challenge other evidence, as well as make legal arguments. During settlement negotiations, they give a voice to children who would otherwise be voiceless.
What Are a Child’s Best Interests?
Before we go further, we should pause and discuss a child’s best interests, a phrase we’ve mentioned several times. In most states, this phrase has a specific meaning. It includes factors like:
- Child’s visitation and custody preference,
- Parent’s preference,
- Child’s current environment, and the need to continue or change that environment,
- Parent’s relationship with the child,
- Child’s special needs, and
- Parent’s disabilities, if any.
The state’s law comes into play as well. A few states still have joint custody laws opposed to sole legal custody. Children “live” with one parent and “visit” the other one. Most states have co-parenting laws which encourage children to have consistent and meaningful contact with both parents, at least in most cases.
A Law Guardian as a Child’s Lawyer
It’s not quite accurate to say an attorney ad litem is a child’s attorney. As most of us know, many young children want things that are not in their best interests. Additionally, many parents manipulate children. So, when the child speaks, the child repeats a parent’s words.
It is accurate to say that a law guardian is not a parent’s lawyer. Conversations between an ad litem and a parent are not confidential. If parents let their guard down and say something they shouldn’t during an interview, that statement could be used against them in court. Furthermore, a legal guardian never argues in favor of a parent, or against a parent.
Things Parents Should Discuss with Law Guardians
It might or might not be a good idea for parents to have their lawyers present during conversations with ad litems. Personal attorneys usually prevent parents from saying the wrong thing, but the “lawyering up” factor often creates a poor environment.
Whether or not your lawyer is present, parents should meet with their lawyers before they interface with ad litems. Generally, parents should stress their positive contributions as caregivers, as opposed to the other parent’s shortcomings.
This principle applies in visitation matters as well. Stress the best interests of the child, as opposed to the best interests of the parent.
What is an example of a primary guardian?
A primary guardian is typically a parent who has been granted the primary care and custody of a child by a court order.
What determines a guardian?
A guardian is determined by a legal process where the court assesses the suitability of a person to care for a minor or an incapacitated individual, often considering the best interests of the person who needs guardianship.
What is the custodial guardian?
A custodial guardian is an individual who has legal custody of a child, meaning they are responsible for the child’s physical care and daily needs.
What is a guardian in simple terms?
In simple terms, a guardian is someone legally appointed to manage the affairs and well-being of another person, usually when they can’t do so themselves due to age, incapacity, or disability.
What does a guardian do?
A guardian makes decisions on behalf of the person under their guardianship, handling matters such as their financial, medical, and personal needs.
How is a guardian chosen?
A guardian is chosen either by being named in a legal document such as a will or by being appointed by a court based on the best interests of the person who requires guardianship.
A law guardian in a divorce or other family law matter is not a parent’s friend. However, the ad litem is not a parent’s enemy either. Instead, an attorney ad litem advocates for the child’s best interests, a goal that all parents should share.