When custody or visitation is in issue in a court case, a Guardian ad Litem may be appointed to represent the child's interests. The court usually decides whether a Guardian ad Litem would be beneficial in a particular case. However, the court does not always choose the Guardian and sometimes may not have any say as to who the Guardian will be.
The Guardian ad Litem
A Guardian ad Litem is the child's attorney, and in some states, such as New York, the Guardian is called the Attorney for the Child. In New York, the child is the client and the Attorney for the Child must obviously be an attorney. In other states, such as Maine, the child is represented by the Guardian ad Litem but the court, not the child, is the client and the Guardian owes its allegiance to the court first. Likewise, in some states like Maine, the Guardian does not have to be an attorney but can be a social worker.
Clerk's Selection From the Roster
In some states, the Guardian is chosen randomly from the list of Guardians. Sometimes this is done alphabetically by the clerks or court secretaries. Other times the Guardian is chosen if it is his turn. Either way, the clerks or secretaries choose the Guardian from the roster. The court has no say unless someone makes a motion for another Guardian ad Litem, such as where there is a conflict of interest. The luck of the draw decides who the Guardian will be in any particular case.
Attorneys' Selection
Other states use subjective methods of selecting Guardians ad Litem and allow the attorneys to hand-pick the Guardian. Some people view this as inherently unfair because the attorneys are going to choose a Guardian whom they believe is favorable to their case. Some courts will allow attorneys to pick several names and then the court decides who the Guardian is if the attorneys cannot agree. Another problem with this method, which is still in use in some states, is that some excellent Guardians are not chosen because either they are not known to the attorneys or because they will protect the child at all costs, which is not necessarily what the mother or father wants when they are concerned about winning their case.
The Court's Selection
Still another method of selection is by the judge. She may know which Guardian will be a good fit for a particular case and may make the appointment based on that knowledge.
Consult an Attorney
Regardless of how the Guardian or Attorney for the Child is chosen, consult an attorney to understand the selection process in your state. Remember only an attorney can give you legal advice.
