Providing what's best for a child is sometimes blurred by emotion, assumptions, and misunderstandings. Whether it is a custody dispute, adoption dispute, or another issue with a child, including an adult child with a disability, a Guardian ad litem (GAL) may be appointed in Texas to represent the best interests of the child who is involved in the middle of a court case. This appointment is meant to provide clarity, especially in times when emotions are running high. GALs are attorneys for children and do not work for nor represent parents, social workers, or agencies.
What is a Guardian ad Litem (GAL)?
Guardian ad Litems (GALs) have become an integral part of the court system in most jurisdictions, although their rights and responsibilities vary greatly between those jurisdictions. Generally speaking, a GAL is a person appointed by the court to make decisions or recommendations for a person whom the court feels needs protection. The GAL will gather evidence by conducting interviews and doing research. Then, they will present their conclusions to the court, often by completing a report that summarizes their recommendations and opinions.
GALs are often attorneys who have been appointed by the court to serve in a GAL capacity. It is important to remember that the role of a GAL varies from the role of a lawyer. A lawyer is their client's advocate, and the client makes the final decisions in any legal matter their lawyer represents or advises them on. A GAL, on the other hand, investigates and analyzes any given situation and, based on the findings, makes recommendations, which are reported to the court.
One important thing to note about GALs is that though a court appoints one, the parent(s), hopeful parent(s), or agency typically pays the Guardian ad litem fees.
When is a Guardian ad Litem Appointed by a Court in Texas?
Most courts, family courts particularly, appoint a GAL when there is a decision to be made regarding the health and well-being of a minor child or an adult child who has a disability. Some examples of when the court may appoint a GAL over a child include:
- Termination of parental rights cases
- Adoption, including adoption by a step-parent or foster parent
- Child custody disputes
- Allegations of child abuse
- Allegations of neglect
- Allegations of abandonment
- Disputes over an adult child with a disability
Again, the appointment of a GAL varies by jurisdiction, but it is typical for them to be appointed in cases where a minor's best interests will be affected by the decision of the court.
Who Can Be Subject to a Guardian ad Litem?
While generally speaking, a GAL is appointed when it is in the best interest of the child. "Best interests of the child," however, is somewhat of a catch-all term. In reality, the court can, and often does, appoint GALs for any scenario where a child is in need of protection.
GALs can be appointed for any minor child or adult child with a disability who is involved in a court case.
Guardians ad Litem for Adult Children with Disabilities
An adult with a physical or mental health issue that prevents their ability to make decisions for themselves may be appointed a GAL in court. Often a GAL is appointed for guardianship legal matters. The GAL will investigate on behalf of the adult child with a disability to determine whether they object to the guardianship and/or want to enforce other rights, like retaining a lawyer.
The GAL's ultimate goal is to determine whether the adult child with a disability:
- Is capable of appearing before the court; and
- Agrees or objects to guardianship.
The GAL will make appropriate recommendations to the court about both the guardianship and the proposed guardian. The recommendations are based on an investigation.
The investigation begins with meeting the adult child and informing them of the guardianship action and their rights during the process. They will discuss the adult child's opinion of the guardianship, their relationship with the proposed guardian, and more. The GAL may also meet with the petitioner seeking guardianship to determine why they want it, what their relationship is with the adult child and other related information. The GAL's role ends when the court appoints (or does not) a guardian.
Guardians ad Litem for Adopted or Foster Children
A Guardian ad litem is often appointed in adoption and foster care cases. Adoption requires the termination of parental rights, and this can be a lengthy process. The matter can be all the more complicated when a parent refuses to agree to an adoption (by, for example, a stepparent or foster parent) but is nonetheless absent in the child's life. Abandonment is a reason to terminate parental rights, but it requires the court's approval.
Throughout all these legal procedures, a Guardian ad litem is appointed to meet with the child, the parents (if available), and the adults who hope to adopt or continue to foster the child. The ultimate goal is to provide the judge with a comprehensive report on the family, the abandonment or abuse allegations, and the final recommendations.
What Does a Guardian ad Litem Do?
GAL services cover a wide range of responsibilities, and while they differ from state to state, some of the more common are listed below.
- Performing interviews to help them better recommend what is in the best interest of their child (person in need of protection)
- Meeting with the child to determine what their needs and wants are, as well as their ability to make decisions
- Advocating for the best interest of the child
- Appearing in court to present their recommendations
- Presenting a thoroughly researched and organized report of their findings to the court
- Determining whether or not the child should have their own legal counsel
A Guardian ad litem has many responsibilities. It is important that they perform their job as required by the laws of their state because judges tend to rely on their recommendations and reports when making a ruling.
What Qualifications Must a Guardian ad Litem Have?
Each state sets its own standards or qualifications for a Guardian ad litem, but generally, a GAL should have minimal training in child-related issues, like:
- Permanency plans
- Parenting plans
- Child development
- Relevant case law
- Childhood trauma issues
- Child protection services
Prospective GALs may also undergo background checks, including criminal history and child abuse registry checks. These background checks are meant to ensure suitability to work with vulnerable people.
Can a Parent Request a Guardian ad Litem in Texas?
While most states will allow a parent to request a GAL assigned, an appointment is not automatic upon the request. A judge will determine the value and necessity, and upon that determination, will decide whether to appoint the GAL or not.
A GAL should not be requested if a parent assumes the GAL will advocate their specific interests. The GAL's duty is to represent the best interest of the child instead of one or both parents.
How Does a Judge Determine Whether to Appoint a Guardian ad litem?
Each state may establish its own unique factors to consider, and much of the latter will depend on whether the matter is before a juvenile court or a family law court.
Factors to be considered often include but are not limited to:
- A parent's right to the care, custody, and control of their children
- The nature and adequacy of available or obtainable evidence
- The court′s need for additional information and/or assistance
- The financial burden that an appointment of a Guardian ad litem may present and the ability of the parties to pay reasonable fees to the Guardian ad litem
- The cost and availability of alternative methods of obtaining the information/evidence necessary to resolve the issues
- Any alleged factors indicating a particularized need for the appointment of a guardian ad litem
When is the Guardian ad Litem No Longer Needed?
In all honesty, this is not a very easy question to answer. In some cases, the role of the GAL is minor and they may have their duties completed in a day. Other cases, however, are long and drawn out, and the GAL may be involved for years.
The length of involvement depends on the particular circumstances of each case. Most courts will like to keep the GAL involved until there is a final resolution in the matter, however long that might take.
Can the Role of a Guardian ad Litem be Terminated?
The termination of a guardian ad litem (GAL) in adoption proceedings may vary depending on the jurisdiction and the specific circumstances of the case. However, there are some general situations where a GAL may be terminated, which include:
- Completion of the duties. Once the GAL has completed their investigation, provided their recommendations, and advocated for the child's best interests throughout the adoption proceedings, their role may be terminated.
- Adoption finalization. Once the adoption is finalized, the court may terminate the GAL's appointment, as their role is no longer necessary.
- Conflict of interest. If the GAL develops a conflict of interest or bias, such as a personal relationship with one of the parties involved in the adoption, they may be terminated to ensure the impartiality of the proceedings.
- Resignation or removal. The GAL may also be terminated if they resign from their appointment or are removed by the court due to a violation of their ethical responsibilities or failure to perform their duties effectively.
Termination of a GAL does not necessarily mean their involvement in the child's life is over. In some cases, the GAL may continue to monitor the child's well-being to ensure that the child's needs are being met and are being provided with a safe and nurturing environment.
Can I Challenge a Guardian ad Litem Report?
Circumstances can arise where it may be appropriate to challenge the report of the GAL. Determining when it is appropriate will generally require the assistance of an attorney who is well-versed in the GAL process. The attorney will know if the GAL committed any errors upon which a challenge may be based.
For example, in some jurisdictions, a GAL is not allowed to violate the rules of evidence. When they do, this may be grounds to challenge the report.