Children are often at the center of many arguments amongst couples during the divorce process and often times after the divorce is settled. During the tumultuous time of a divorce proceeding and custody arrangements, parents’ emotions can take over and leave the children in the middle. The courts’ duty is to serve the best interest of the children. In order to protect the best interest of the interest, the judge may order an attorney ad litem or guardian ad litem. The judge makes the determination if either of these is necessary if he or she feels the minor(s) needs their own independent legal representation or protection.
Under Arkansas Code, §28-1-111, (a) “circuit courts shall have the power and duty to appoint a guardian ad litem to a proceeding to represent an incompetent party who is not represented by a guardian or next friend and, for the protections of the interests of a nonresident party who is not represented before the court and has not been personally served with notice, to appoint an attorney ad litem to give notice to the nonresident of the pendency and nature of the proceeding as is provided by law with respect to proceedings in courts of equity.”
(b) “The appointment of a guardian ad litem or attorney may be made by the clerk of the court at any time after the initial of a proceeding by the filling of a petition, subject to the approval of the court.”
Guardian Ad Litem
This person is appointed to represent the best interest of the child and does not have to be a lawyer. Such persons can be volunteer advocates, such as CASA (Court Appointed Special Advocates), non-attorney licensed professionals such as counselors and social workers, and any adult the court determines to be competent to serve as a guardian ad litem. In some cases, the lawyer is appointed both the attorney and guardian ad litem.
Attorney Ad Litem
This is an attorney who provides legal services to a person, including a child. In family law, the minor often does not have a legal representative unless one is appointed by the Court.
Once the Court appoints an attorney ad litem, they will interview the involved child, all involved parties and any witnesses to determine the best way to represent the child. Then, they must conduct an investigation into the facts of the case along with determining the child’s wishes, if possible. The attorney ad litem is responsible for taking any actions deemed necessary. If the attorney deems necessary, he or she could conduct discovery, file motions and move to promote settlement of the litigation
The attorney ad litem will present to the court all relevant facts regarding the case, the child’s wishes and the ad litem’s deteriming of the child’s best interest. He or she will file appropriate pleadings on behalf of the child, call witnesses, participant fully in examination of witnesses, present relevant evidence an advocate for timely hearings.
The primary difference between a guardian ad litem and attorney ad litem is that the attorney is not a witness and advocates for his or her client. A guardian ad litem is intended to become a witness as to what is in the best interest of the child. This person becomes an integral party of the proceedings and acts on behalf of the child in the case. Both will have regular contact with the child. Both will appear at all hearings to represent the best interest of the child.
Factors used to determine the best interest of a child are:
- Moral fitness – integrity, character, compassion, sobriety, religious training
- Stability – emotional, work, financial, residence, school, healthy
- Love and affection – attention given, discipline, attitude toward cooperation with the other party regarding eh child’s needs
- The Child: relevant information regarding the child such as stated preferences, age, health and testing evaluations
- Home and Location – Location, size, family composition
Kevin Hickey Law Partners has extensive experience and expertise in family law cases. We will be happy to help you determine which service is of the best interest for you.