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Role of the Guardian ad litem

Attorneys for Children: The New Jersey Rules of Court provide for the appointment of an attorney for children in need of legal representation in the Court - Rule 5:8A. An attorney representing a child, espouses the child's preference on major issues involving the child. On occasion, in a heavily conflicted custody dispute, where children are older, and neither parent's position fully encompasses the child's position, an attorney for the child may be helpful to the Court. If asked off-the-record however most Judges would probably take the view that one more attorney is the last thing the Court needs in a high conflict divorce case. In reality and for whatever reason, attorneys for children are appointed much less frequently than are Guardians as litem.

Guardian ad litem: The more customary intervention is to appoint a guardian within the litigation {ad litem} to protect children's interests in Court where parenting disputes are unusually conflicted pre-divorce or where there is a continuing dysfunctional parenting relationship post-divorce. The Guardian does not supplant the parents role in child raising. Rather the Guardian seeks to determine whether one parent or both parents' actions are wreaking havoc upon the children, and to recommend in writing to the Court what modification of parenting arrangements, and what post trial interventions are appropriate to help the family restore or gain a safe and nurturing place for the raising of children.

In accordance with long-settled decisional law of this State, Family court Judges stand in the role of legal protector for children and other citizens who are unable to protect themselves; and further that state power carries with it the obligation to protect children within the court's jurisdiction- this concept is frequently referred to as the parens patriae powers of the Court; the governing principle being that political authority carries with it the responsibility for such protection.

Formal custody evaluations and reports are conducted by Psychologists, Psychiatrists, Licensed Clinical Social Workers, and others holding applicable doctorate degrees. Guardians ad litem are generally attorneys appointed by the Court to act as an arm of the Court. The Judge is constrained to work within the confinements of the courthouse. The Guardian ad litem is free and encouraged to make home visits, talk to teachers, medical and mental health providers and get a general sense as to what is actually happening. Since the Court Rules provide that the 'services rendered by a guardian ad litem shall be to the Court on behalf of the child', persons appointed as Guardian ad litem have a high degree of comfort that they will not be subject to legal suit or process for their findings of fact and conclusions of law.

Mental health professionals providing Custody Evaluation reports do not have this protection and are thus much more concerned about being sued for the things stated in their report by a disgruntled parent.

As a result, Guardian ad litem reports provide the Court with "straight talk" as to what is going on, which parent is "stirring the pot", or whether both parents are engaged in such contested legal warfare that they have lost sight of the adverse impact of their conflict on the children.

The Court views its primary role as protecting children, and then doing what can reasonably be done to get the family back on a co-parenting footing, if this appears reasonable. Unfortunately in the opinion of this writer, Guardian ad litem appointments are utilized far too infrequently; custody evaluation reports fail to directly address the core personality traits motivating the controversy; and cases end with the children being sent for therapy to learn how to cope with one or both of their troubled parents

This is the subject of endless articles and psychological monographs on the Internet which can quickly be found, as example, by entering the words "borderline personality disorder" and "custody" in a Google search. Where there is serious emotional difficulties, such conditions are subject to being not recognized or otherwise papered over in the Court. The end result is that problems thought to be resolved by the terms of a divorce judgment fester over the subsequent years, with the emotionally disturbed parent not being "called" on their actions that are harmful to the children.

To get to the bottom of emotionally and factually driven problems impacting children adversely, the Guardian ad litem rule requires that the appointed "G.A.L" prepare and "file a written report with the court setting forth findings and recommendations and the basis thereof." The G.A.L is required to be available to testify to the Court as to the report presented. In addition to "findings" and "recommendations" the G.A.L has the following obligations and responsibilities under the Rule:

" 1. Interviewing the children and parties. 2. Interviewing other persons possessing relevant information. 3. Obtaining relevant documentary evidence. 4. Conferring with counsel for the parties. 5. Conferring with the Court, on notice to counsel. 6. Obtaining the assistance of independent experts, on leave of court. 7. Obtaining the assistance of a lawyer for the child (Rule 5:8A) on leave of Court. 8. Such other matters as the guardian ad litem may request on leave of Court. "

This is a very powerful appointment. A diligent Guardian ad litem can often cut through the "fog of litigation" and get down to the crux of conflict. The Court is generally faced with periodic crises that require its attention. It is difficult for the Court to get a sense of the longitudinal invents in a case stretching for one or more years. The Guardian's role is to marshall police reports, medical reports, and educational reports to the extent required to give the Court a view of what is actually occurring.

At present the Guardian ad litem intervention is under-utilized in the Monmouth County vicinity. It is hoped that judges, lawyers and parents visiting this site will encourage and facilitate appointment of G.A.Ls to assist in the factual understanding and clarification of custody disputes.

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