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Guardian ad litems and divorce

In divorces involving children, a guardian ad litem may be appointed by the court. This blog post will discuss guardian ad litems and their role in Minnesota divorce cases.

What is a guardian ad litem?

A guardian ad litem is a person that is appointed by the court to represent the child's best interests during child custody cases. Not all child custody cases will need a guardian ad litem; in fact, few do. However, when a court feels it is necessary to appoint a guardian ad litem (for example, in cases involving neglect), it has the right to do so.

A judge must appoint a guardian ad litem in cases involving:

  • Child neglect
  • Child abuse
  • Threats to the child
  • Foster care

Guardian ad litems are responsible for doing an independent investigation and presenting evidence to the court about what is in the child's best interests based on that investigation. They interview parents, friends, caregivers, the child, counselors, teachers and other people in the child's life. After the investigation, they write a report to the judge with their recommendations. While judges do not view these reports as authoritative, they often take guardian ad litems' recommendations seriously.

Best interests standard

A guardian ad litem's sole responsibility is to determine what is in the child's best interests. In most states, including Minnesota, the child's best interests guide a court's decision on divorce issues involving children.

For example, when a court determines child custody, it will look at a number of factors to determine what custody arrangement is in the child's best interests, including:

  • Reasonable child preference if the child is of an age that allows him or her to express his or her preference
  • Which parent has been the child's primary caretaker
  • The relationship between the child and each parent
  • The child's ability to adjust to home, school and the community
  • The child's current environment and the benefits of maintaining continuity
  • The child's cultural background
  • The capacity of each parent to give the child love, affection and education
  • Any evidence of abuse or domestic violence

Guardian ad litems, like the courts, will consider these factors when doing their investigation and writing their report to the court.

Source: Education for Justice, "What Is a Guardian Ad Litem?" Fall 2011.

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