Guardian Ad Litem (GAL)

Divorce and Family Law

This page is designed to help you better understand the basics of a Guardian Ad Litem, when a Guardian Ad Litem is typically appointed, what is expected of a Guardian Ad Litem, and how an attorney can help or in certain cases even serve as a Guardian Ad Litem.

Note: Just as with any other legal situation, if a person finds themselves needing a Guardian Ad Litem or being appointed a Guardian Ad Litem, they should not hesitate to contact an attorney. It is always a good idea to seek any legal advice from a legal professional rather than an individual attempting to handle it themselves. This page details the specifics regarding a Guardian Ad Litem in the state of Ohio, and can vary from state-to-state.

What Is A Guardian Ad Litem?

Guardian Ad Litem is derived from the Latin term “ad litem” meaning “guardian for the suit”. The legal definition for a Guardian Ad Litem is: “When a person involved in a suit cannot adequately represent his or her own interests, the court may appoint a guardian ad litem to protect the person’s interests. Unlike typical guardians or conservators, guardians ad litem only protect their wards’ interests in a single suit.”

The majority of the law governing a Guardian Ad Litem in the state of Ohio can be found in § 2151.281 of the Ohio Revised Code (ORC). More information about the specific requirements and functions of a Guardian Ad Litem is covered in the Ohio Superintendence Rule 48.

How Is A Guardian Ad Litem Different From A Legal Guardian?

Although the role of a Guardian Ad Litem may not seem all-that-much different from the role of a legal guardian, there is actually a unique distinction that sets these two titles apart from one another.

The primary functions of a legal guardian typically involve caring for a child, managing their day-to-day affairs and being responsible for their property and protection over a relative period of time. A Guardian Ad Litem’s function is much more specific because they are responsible for only protecting the interests of a child who is somehow involved in a lawsuit. A Guardian Ad Litem’s function and purpose has concluded when the lawsuit has concluded. A Guardian Ad Litem is not allowed to obtain custody of the child.

Who Can Serve As A Guardian Ad Litem?

Typically, and this is the case in the state of Ohio, there are specialized individuals known as “court-appointed special advocates” (CASAs) who are trained to function in the role as a Guardian Ad Litem for an assigned child. This training is given by the Supreme Court of Ohio and provides a CASA/GAL with an understanding of how to interact and speak with a child, as well as identifying potential signs of child abuse or neglect.

When Is A Guardian Ad Litem Appointed?

Under Subsections (A)-(C) of Ohio Revised Code § 2151.281:

“(A) The court shall appoint a guardian ad litem, subject to rules adopted by the supreme court, to protect the interest of a child in any proceeding concerning an alleged or adjudicated delinquent child or unruly child when either of the following applies:

(1) The child has no parent, guardian, or legal custodian.

(2) The court finds that there is a conflict of interest between the child and the child’s parent, guardian, or legal custodian.

(B)

(1) Except as provided in division (K) of this section, the court shall appoint a guardian ad litem, subject to rules adopted by the supreme court, to protect the interest of a child in any proceeding concerning an alleged abused or neglected child and in any proceeding held pursuant to section 2151.414 of the Revised Code. The guardian ad litem so appointed shall not be the attorney responsible for presenting the evidence alleging that the child is an abused or neglected child and shall not be an employee of any party in the proceeding.

(2) Except in any proceeding concerning a dependent child involving the permanent custody of an infant under the age of six months for the sole purpose of placement for adoption by a private child placing agency, the court shall appoint a guardian ad litem, subject to rules adopted by the supreme court, to protect the interest of a child in any proceeding concerning an alleged dependent child if any of the following applies:

(a) The parent of the child appears to be mentally incompetent or is under eighteen years of age.

(b) There is a conflict of interest between the child and the child’s parents, guardian, or custodian.

(c) The court believes that the parent of the child is not capable of representing the best interest of the child.

(3) Except in any proceeding concerning a dependent child involving the permanent custody of an infant under the age of six months for the sole purpose of placement for adoption by a private child placing agency, the court may appoint a guardian ad litem, subject to rules adopted by the supreme court, to protect the interest of the child in any other proceeding concerning an alleged dependent child.
. . .

(C) In any proceeding concerning an alleged or adjudicated delinquent, unruly, abused, neglected, or dependent child in which the parent appears to be mentally incompetent or is under eighteen years of age, the court shall appoint a guardian ad litem to protect the interest of that parent.”

Breaking It Down: Simplifying the above law, in most circumstances, a Guardian Ad Litem is appointed if the child appears to have no parent, guardian or legal custodian; if there is a conflict between the child and the parent, guardian or legal custodian; if it is believe that the parent, guardian, or legal custodian will not represent the best interests of the child; if the parent of the child is under the age of 18 or mentally incompetent; or if the case involves the alleged neglect or abuse of the child by the parent, guardian, or legal custodian.

Who Appoints A Guardian Ad Litem?

A Guardian Ad Litem is always appointed by a judge or magistrate who is overseeing the case that involves the child in question. A Guardian Ad Litem can be appointed at the request of an attorney representing the child or if the court finds it necessary or pertinent to appoint one. A person can serve as a Guardian Ad Litem for more than one child, unless a conflict of interest arises.

What Is Expected Of A Guardian Ad Litem?

Ohio Superintendence Rule 48, Subsection (D) currently provides a list of 17 primary responsibilities a Guardian Ad Litem is expected to maintain during their service. A summarization of these functions are:

  • (D)(1): Represent the best interest of the child for whom they are appointed.
  • (D)(2): Maintain independence, objectivity and fairness, both in and out of the courtroom.
  • (D)(3): Because a Guardian Ad Litem is an officer of the court, they must act with respect and courtesy at all times.
  • (D)(4): Appear at any and all hearings that deal with the responsibilities of a Guardian Ad Litem
  • (D)(5): A Guardian Ad Litem who is not an attorney may not engage in any conduct or activity that amounts to the unauthorized practice of law.
  • (D)(6): A Guardian Ad Litem who is also an attorney may file pleadings, motions and documents.
  • (D)(7): A Guardian Ad litem who is also serving as an attorney for the child must represent the child’s best interests at all times and should be aware of Rule 3.7 of the Rules of Professional Conduct.
  • (D)(8): If a conflict of interest arises between the child’s best interest and their wishes, a Guardian Ad Litem should write to the court to resolve the matter as soon as possible.
  • (D)(9): A Guardian Ad Litem should avoid any and all conflicts of interest and associations where they might benefit in any other way outside of compensation for serving as Guardian Ad Litem.
  • (D)(10): As soon as a Guardian Ad Litem is aware of a conflict of interest, they should take immediate action to resolve that conflict of interest.
  • (D)(11): A Guardian Ad Litem is required to satisfy all the necessary training and experience requirements that are required by the area in which they are serving as Guardian Ad Litem.
  • (D)(12): A Guardian Ad Litem is required to provide the court with a statement that they will comply with all educational and training requirements expected of them.
  • (D)(13): A Guardian Ad Litem should be reasonably informed about the facts of the case concerning the child they are responsible for as well as contacting all parties (includes a list of activities the Guardian Ad Litem should take part in).
  • (D)(14): When contacting individuals as part of their role, a Guardian Ad Litem must identify themselves as a Guardian Ad Litem and identify their responsibilities.
  • (D)(15): A Guardian Ad Litem is not to discuss the case or investigations related to the case unless it is to the court or in furtherance of their responsibilities as Guardian Ad Litem.
  • (D)(16): A Guardian Ad Litem shall perform their responsibilities in a timely manner.
  • (D)(17): A Guardian Ad Litem who is being paid, is required to keep accurate and up-to-date records related to time and expenses when serving as Guardian Ad Litem.

While there are other potential responsibilities a Guardian Ad Litem may be responsible for, those listed in Ohio Superintendence Rule 48 are the most important.