If you're in the middle of a complex child custody case or facing an allegation of abuse against you or your co-parent, a New Jersey family court may appoint a guardian ad litem to advise it on the best interests of the child. Before heading into a high conflict custody case, it's good to know the role a guardian ad litem may play in your court case and how they will make recommendations to the court.
What is a Guardian ad Litem?
A guardian ad litem (GAL) is an attorney appointed by a New Jersey court to represent the interests of a child. Under Section 5:8B of the New Jersey Court Rules, a court can appoint a GAL in any case where custody or visitation is at issue. A GAL can be an attorney, social worker, mental health worker, or other appropriate people. However, in abuse situations, an attorney should serve as the child's appointed counsel rather than a GAL. In New Jersey, this is called a law guardian.
9:6-8.23. Law guardian; appointment
3. a. Any minor who is the subject of a child abuse or neglect proceeding under this act must be represented by a law guardian to help protect his interests and to help him express his wishes to the court. However, nothing in this act shall be construed to preclude any other interested person or agency from appearing by counsel.
b. The Superior Court, Chancery Division, Family Part, on its own motion, will make appointments of law guardians.
N.J. Stat. § 9:6-8.23 (2004).
The court may also appoint a law guardian in neglect and abuse situations where the court may terminate parental rights. See N.J. Stat. § 30:4C-15.4(b) (2004).
New Jersey courts don't appoint GALs often, but they will appoint them in high-conflict custody cases to have an independent evaluation. A GAL's formal role is to “protect the child's interests and help him express his wishes to the court.”
If a minor is made a party to a custody dispute, the court will typically appoint a GAL as well.
The child may be made a party to the action. If the child is a minor and is made a party, a guardian ad litem may be appointed by the court to represent the child. The child's mother or father may not represent the child as guardian or otherwise. The court may appoint an attorney-at-law or an appropriate State agency as guardian ad litem for the child. The natural mother, each man presumed to be the father under section 6, each man alleged to be the natural father, any one whose name appears on the birth certificate, and anyone who has attempted to file an acknowledgment under section 6, whether or not effective to create a presumption of paternity, shall be made parties or, if not subject to the jurisdiction of the court, shall be given notice of the action in a manner prescribed by the court and an opportunity to be heard. The court may align the parties.
See N.J. Stat. § 9:17-47 (2013).
Duties of the Guardian ad litem
In New Jersey, guardians ad litem represent the interests of a child during a court case. A GAL's role is different from that of court-appointed counsel, whose job is to serve as a legal advocate for a child. A court-appointed counsel serves the child. However, a GAL's service are to the court on behalf of the child. The GAL serves as an independent fact-finder, investigator, and evaluator as to what meets the child's best interests. A GAL's duties include:
- Interviewing the children and parties.
- Interviewing other persons possessing relevant information.
- Obtaining relevant documentary evidence.
- Conferring with counsel for the parties.
- Conferring with the court, on notice to counsel.
- Obtaining the assistance of independent experts on leave of court.
- Obtaining the assistance of a lawyer for the child (Rule 5:8A) on leave of court.
- Such other matters as the guardian ad litem may request, on leave of court.
The GAL will deliver a written report to the court based on their conclusions, and the court may allocate the costs to each party.
Best Interests of the Child
During a custody or other dispute, the New Jersey family court will consider the guardian ad litem's report, recommendations, and testimony. However, ultimately the court must determine the child's best interests using factors set forth under New Jersey law, with the child's safety being paramount. As part of this analysis, the court will look at:
- The child's needs,
- Whether the parents can cooperate and communicate concerning the child,
- Whether there is a history of domestic violence, mental illness, or alcohol or drug abuse,
- The relationship the child has with each parent and any siblings, as well as their interactions,
- How stable each home is,
- Whether the child and other parent are safe from abuse,
- The child's education, including its quality and continuity,
- The child's preference if they're old enough to make an intelligent decision,
- Whether each parent is fit,
- The parents' jobs and their employment responsibilities, like overnight hours or travel,
- How close the parents' houses are to one another,
- How many children there are and their ages,
- How much time each parent spent with the children before separation and the quality of the time,
- How willing each parent is to accept custody and whether there is any history of reluctance to share parenting time, absent one based on substantiated abuse allegations.
Hire an Experienced New Jersey Family Law Attorney
If you're heading towards a divorce or separation in New Jersey, or if you're already in the midst of a child custody dispute, you need the guidance of a skilled New Jersey family law attorney. Attorney Joseph D. Lento has years of experience fighting for New Jersey parents and helping families navigate the complex issues during custody disputes. He can help you too. Contact the Lento Law Firm online today, or call at 888-535-3686.