Family Matters

The Role of a Guardian ad Litem in New Jersey Family Court

A Guardian ad Litem can be an extremely useful, if not essential, addition to your family law matter.

In a nutshell, a Guardian ad Litem is a court-appointed advocate representing the best interests of a child or allegedly incapacitated adult. They serve as the eyes and ears of the Court and follow the Court’s directives to investigate specific issues before the Court. 

The Court Rule addressing Guardian ad Litems in contested custody and parenting time cases provides as follows:

“In all cases in which custody or parenting time/visitation is an issue, a guardian ad litem may be appointed by court order to represent the best interests of the child or children if the circumstances warrant such an appointment. The services rendered by a guardian ad litem shall be to the court on behalf of the child.”  

The Guardian ad Litem serves as an independent fact-finder, investigator, and evaluator.  The Guardian ad Litem may interview the children, the parties, teachers, therapists, extended family members, and any other individuals with relevant information, and may also obtain records from the children’s school and providers.  Following this investigation, the Guardian ad Litem will submit findings and a recommendation directly to the Court and may testify at trial about the same.

In many contested custody and parenting time cases, a comprehensive Custody Evaluation may be warranted.  Those evaluations are conducted by mental health experts and commonly include neuropsychological testing of the parents and children.  Accordingly, those evaluations may take several months to complete and come at a significant cost.  A Guardian ad Litem, however, is typically an attorney with experience in family law. Their findings and recommendations will be limited to their personal observations and impressions from interviews and by summarizing any records they receive.  Therefore, it is unlikely that a Guardian ad Litem’s report will be as thorough or informative as a comprehensive Custody Evaluation. However, it will take less time to complete and be more affordable than a comprehensive Custody Evaluation.  In cases with older children, a Guardian ad Litem may be more appropriate if the objective is to uncover the children’s wishes and experiences.  Therefore, requesting a Guardian ad Litem can be more affordable, although sometimes less thorough, and means having a neutral third party weigh in on your custody and parenting time disputes.   

Unlike with children, an adult is presumed to have the capacity to handle their matters unless they have been deemed incapacitated as part of a formal guardianship proceeding.  However, if there are concerns about a litigant’s capacity in a divorce action or other family action, a family court judge may appoint a Guardian ad Litem to investigate issues regarding that individual’s capacity.  With an allegedly incapacitated adult, the Guardian ad Litem’s role is limited to making findings and recommendations on whether a formal competency hearing may be necessary to protect that individual from financial harm. A Guardian ad Litem, however, does not have the authority to make decisions on behalf of the allegedly incapacitated person.  It is a constitutional right for competent people to be able to make decisions about their affairs, including litigating their cases as they see fit and entering into agreements.  To limit someone’s decision-making abilities is a significant encroachment and requires a formal adjudication. The Guardian ad Litem’s responsibility is to advise the court as to whether a formal competency hearing may be necessary.

The family law attorneys at Obermayer have handled matters involving Guardian ad Litems and have also served as court-appointed Guardian ad Litems. You should consult with an attorney to learn more about whether or not a Guardian ad Litem would benefit your case.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.