A Guardian ad Litem’s job is to represent the best interests of the child in any given case, and the Guardian Ad Litem does not represent either of the parents. As such, the Guardian Ad Litem cannot give parents legal advice. Parents must turn to their own lawyers when they need legal advice. If the parents need assistance in presenting evidence, gathering witnesses, etc to advocate for their own position in a case, that is a job for their own attorneys as well, and not the Guardian Ad Litem.
Although the Guardian Ad Litem can make recommendations to the court about custody and visitation in those types of cases, the GAL does not “rule” or make the final decision. Ultimately, only the Court can make the final decision on a case. Of further note is that the Guardian Ad Litem is forbidden from having ex parte communications with the Court. An example of an ex parte communication would be if the GAL had a private conversation with the judge about the case outside of the presence of the attorneys for the parties. As such, the GALs recommendation typically takes the form of a written report that is filed with the Court and thus made simultaneously available to all parties. Some judges do not request recommendations from the GALs and merely expect them to advocate for the child as any other attorney.
In some cases, a GAL may be appointed for a parent or spouse because that person is a minor themselves or is otherwise incapacitated due to mental or physical illness or disabililty. The GAL’s job remains to advocate for the best interests of their client.
Outside of custody and divorce cases, a GAL can be appointed for a minor or incapacitated person in all types of civil lawsuits and their specific role may differ.
When it comes to divorce, child custody and visitation disputes are no picnic. These events can be a very emotional and intense process. Frequently in divorce, child custody, or visitation disputes a Guardian Ad Litem, also known as a GAL, will be appointed.
In Alabama, a GAL is an attorney appointed by the court to represent the “best interests” of the child or children involved. A GAL’s duty is not necessarily to advocate for what the child wants which can sometimes be opposed to what is in the child’s best interests. The Guardian Ad Litem will often be asked to present a report and recommendation to the Court for consideration at the conclusion of the case, and, while the Court will take into consideration the recommendation of the GAL, the Court is not bound by what the GAL recommends.
A Guardian Ad Litem is not only appointed in divorce and custody cases but might also be appointed in cases such as;
• Minors involved without living parents
• Juvenile Delinquency Cases
• Child Abuse and Neglect cases
• Guardianships, Conservatorships and Decedents’ Estates in Probate Court.
• Civil Suits of all kinds where minors are involved.
Today, the Alabama Supreme Court has issued an opinion in the case of Ex Parte Christopher, which overturns the landmark case of Ex Parte Bayliss. Bayliss is the case which gave Alabama Courts the authority to order parents to pay post-minority support and contribute to college expenses for their children after they reach the age of majority. Under Alabama law, the age of majority is nineteen (19).
If you are already under a court-ordered obligation to pay post-minority support for the benefit of your child, this decision will not effect you as the Court has stated its opinion overruling Bayliss is only applicable in future cases. If no final order has been entered in your case or it is on appeal, then the decision does apply to you. Parents are still free, of course, to voluntarily agree to pay such expenses.
Michael Turner v. Rebccea Rogers Et Al.
The United States Supreme Court is hearing the case of Michael Turner from South Carolina. Turner was jailed for 12 months for failure to pay $6,000.00 in child support arrearage which he owed. Turner was described as indigent; howver, South Carolina is one of many states, as is Alabama, that does not appoint counsel for indigent Defendants in non-payment of child support actions.
Turner is being represented by a group of pro bono lawyers who have argued that his Sixth Amendment Right to counsel was violated, and that his lengthy incarceration is the equivalent of debtor’s prison. The central legal issue in this case is whether and in what circumstances the state may deprive an individual of his liberty without providing him a lawyer.
Non-payment of child support is generally an issue of civil, as opposed to criminal, contempt, meaning that the Defendant “holds the keys” to his or her jail cell and can become free by making the necessary payment. This position is what Turner’s ex-wife’s attorneys have argued in support of their position that Turner is not entitled to legal counsel in such a proceeding.
The court is expected to render a decision by Summer 2011. The far-reaching effects of this Supreme Court jurisprudence will be interesting to see unfold, as Alabama is currently in a budgetary crisis and experiencing shortfalls in funding regarding the indigent defense that we currently have in place.