Horowitz Law

Divorce Law: Protecting The Rights Of Children With The Guardian Ad Litem

The State of California has a substantial interest in protecting the rights of minors and incapable adults who have a vested interest in family assets or care-taking. The protection of the State may come in the form of a Guardian ad litem (GAL). The state courts may also empower a GAL for an unmindful and incapable adult, like an elderly person who is senile. These categories of people are unable to competently make choices that require what is deemed sufficient life experience, judgement and education. An adult who can no longer recall his daughter's name and a minor are both considered competent in this context. 

what is a guardian ad litem?

The guardian ad litem can be a grandparent, a surviving parent, aunt or someone the court appoints to represent a child’s interests in divorce fights between parents. The battle can be over child custody, child support, or any number of probate matters. If the guardian ad litem is not an attorney, an attorney will often represents the minor or incompetent adult.Here is a great definition from :

A “Guardian ad litem” (GAL) is a person the court appoints to investigate what solutions would be in the “best interests of a child.” Here, we are talking about a GAL in a divorce or parental rights and responsibilities case. The GAL will look into the family situation and advise the court about issues such as: 

  • where the children should live most of the time
  • whether the child is being harmed by one parent’s alleged substance abuse
  • what contact the child should have with the other parent

- Pine Tree Legal Assistance

what is a guardian's responsibilities?

Guardians take care of a child or incompetent adult's needs: food, shelter, medical care, education, etc. Additionally, guardians may also provide financial management for assets. This role may also be filled by a second party appointed by the court. This second party is likely called the "guardian of the estate". 

when does a guardianship end?

A guardianship ends when a judge makes a determination that it is no longer needed. Reasons that it may no longer be needed include: a child reaches an age considered to be the legal age of adulthood, the child or disabled adult dies, assets are entirely consumed. Even if a guardianship remains in force, a guardian may step down with permission from the court. In that case, a judge will appoint a replacement guardian if necessary.

if a child that is not yours lives with you, do you need a guardianship?

Difficult divorces sometimes result in children staying with relatives or close family friends. This is more likely if the divorce proceedings include claims of abuse or neglect. If you are helping out family members or friends that are going through a divorce by taking care of their kids for a season, even if you anticipate caring for them for less than a few months, you should consider legal guardianship. For longer periods of care, without the legal empowerment of the guardianship, you could run into difficulty in taking care of the kids normal day-to-day needs, like accessing insurance benefits and registering kids for school.

Another consideration is the added leverage a legal guardianship provides if the child's parent or parents want him or her back. As a legal guardian, you will have more influence and more rights to continue providing care if, in your opinion, the parents are still incapable of providing appropriate care.

This article was derived from a post on the Nolo Legal Encyclopedia.

This article is not intended to provide legal advice. For legal advice on any of the information in this post, please contact one of our attorneys. Browse our attorney profiles, use the form to the right or contact us by phone: 805-452-7214.