Guardian Ad Litem

In some cases, a court will appoint the guardian ad litem to a minor child involved in a dissolution of marriage. A court will determine whether or not one is needed, based on what is in the child’s best interest. Ad litem is Latin, meaning “to suit” therefore direct translated, it means a guardian to suit the best interests of a child.

This kind of caretaker is a special guardian only used for the duration of the legal process concerning a divorce or separation. They are only appointed to minors, who typically need someone who will help act and protect in the child’s best interest. They are appointed in order to protect the rights of the children who cannot necessarily speak up for themselves. The powers, restrictions, duties, and appointment of a guardian are specified in Florida Statutes title VI, chapter 61, section 61.403 and section 61.401.

Florida Statute §61.40

According to Florida Statute §61.403: “A guardian ad litem when appointed shall act as next friend of the child, investigator or evaluator, not as attorney or advocate but shall act in the child’s best interest.” (Fla. Stat. §61.403). The court may also assign legal counsel to a child, if needed, but “the guardian and the legal counsel shall not be the same person” (Fla. Stat. §61.401). However, there are restrictions and limitations as to what the guardian ad litem can and cannot do to help the child. Under to Florida Statute §61.403: “

(1) The guardian ad litem may investigate the allegations of the pleadings affecting the child, and, after proper notice to interested parties to the litigation and subject to conditions set by the court, may interview the child, witnesses, or any other person having information concerning the welfare of the child.

(2) The guardian ad litem, through counsel, may petition the court for an order directed to a specified person, agency, or organization, including, but not limited to, hospitals, medical doctors, dentists, psychologists, and psychiatrists, which order directs that the guardian ad litem be allowed to inspect and copy any records and documents which relate to the minor child or to the child’s parents or other custodial persons or household members with whom the child resides. Such order shall be obtained only after notice to all parties and hearing thereon.

(3) The guardian ad litem, through counsel, may request the court to order expert examinations of the child, the child’s parents, or other interested parties in the action, by medical doctors, dentists, and other providers of health care including psychiatrists, psychologists, or other mental health professionals.

(4) The guardian ad litem may assist the court in obtaining impartial expert examinations.

(5) The guardian ad litem may address the court and make written or oral recommendations to the court. The guardian ad litem shall file a written report which may include recommendations and a statement of the wishes of the child. The report must be filed and served on all parties at least 20 days prior to the hearing at which it will be presented unless the court waives such time limit. The guardian  must be provided with copies of all pleadings, notices, and other documents filed in the action and is entitled to reasonable notice before any action affecting the child is taken by either of the parties, their counsel, or the court.

(6) A guardian ad litem, acting through counsel, may file such pleadings, motions, or petitions for relief as the guardian deems appropriate or necessary in furtherance of the guardian’s function. The guardian ad litem, through counsel, is entitled to be present and to participate in all depositions, hearings, and other proceedings in the action. And, through counsel, they may compel the attendance of witnesses.

(7) The duties and rights of nonattorney guardians do not include the right to practice law.

(8) The guardian ad litem shall submit his or her recommendations to the court regarding any stipulation or agreement, whether incidental, temporary, or permanent, which affects the interest or welfare of the minor child, within 10 days after the date such stipulation or agreement is served upon the guardian ad litem.” (Fla. Stat. §61.403). Generally, the guardian is used by the court in order to gain a more holistic view as to what is or is not in the child’s best interest. They have their listed responsibilities and obligations. However, there are also restrictions as to how far the guardian ad litem may interfere or influence a case.

Guardian Ad Litem Court Cases

This was prevalent in the case of Shugar v. Shugar, 924 So. 2d 941 (Fla. Dist. Ct. App. 2006). The mother of the child wished for the original court’s rulings be reviewed due to the fact that the guardian ad litem made decisions pertaining to the visitation schedule between the parties. It was deemed that the trial court did not have the authority to delegate the issue of visitation to the guardian ad litem. The court is not allowed to delegate their legal jurisdiction over visitation to the guardian ad litem, attorneys, or other experts. The guardian did not have the right to make independent decisions that would affect the parties involved.

In Bahl v. Bahl, 220 So. 3d 1214 (Fla. Dist. Ct. App. 2016), the mother filed an emergency motion, which was granted, in order to change the temporary timesharing between the two parties due to information discovered in the guardian ad litem’s report. This case was later reversed and remanded because of a couple reasons. One was that the father was not given the proper opportunity to hear and address the report. The trial court also restricted the father’s communication with the child over the telephone. The report from the guardian did not provide a high enough level of harm that would allow the restriction of information from the father by the trial court. There were many errors on the part of the trial court in this case that led to this case being reversed and remanded.

 

The guardian ad litem plays an important role in helping seek what is best for a child involved in a dissolution of marriage. Appointed by the court, these guardians have numerous responsibilities when it comes to protecting the best interests of the child. Although they may not make decisions that directly impact a case, their involvement ultimately benefits and helps emphasize what is best for the child or children.

 

 

References:

 

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/Sections/0061.403.html

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/Sections/0061.401.html

Bahl v. Bahl, 220 So. 3d 1214 (Fla. Dist. Ct. App. 2016)

Shugar v. Shugar, 924 So. 2d 941 (Fla. Dist. Ct. App. 2006)