Guardians and the Family Law Case

In Raleigh, NC where I have practiced law most of the last seventeen-plus years there have been a few rare occurrences in my cases.  More rare than lunar eclipses in fact.  I am referring to the appointment of guardians in family law cases.

Under the NC Rules of Civil procedure a guardian may be appointed for a party or a child.  A guardian in this capacity is called a “guardian ad litem” and frequently referred to as a GAL.

Guardians are appointed for a party in a divorce case when that spouse is not mentally or physically capable of handling the matters related to the litigation.  For example, if a spouse suffers from schizophrenia or other serious psychological condition where their decision-making process is impaired, a guardian can be appointed.

It’s the guardian’s job to look out for the party’s legal interests and assist the attorney in prosecuting or defending the case. GAL’S for adults in domestic cases often have a very hard job.  They have to balance the duty to the party for whom he or she is guardian and listen to their stated wants and desires while using their best judgment about how to proceed forward in the divorce case.

It’s also a tricky situation for the attorney who thinks his or her client may need a guardian.  Frequently, however, there is a mental health professional who is making it clear that the client shouldn’t be or can’t make decisions for himself or herself.

Guardians for children have a similar role.  In family law cases, they are frequently appointed in cases where there are allegations of parental abuse or neglect that involve child protective services.  Children’s guardians are somewhat rare in Wake County in the “normal” child custody case where two parents simply disagree over scheduling and decision-making issues.

The guardian for a child in a case has the ability to report to the court how the child doing and be a voice for the child’s interest in the court process.  I have seen instances where the  GAL takes the witness stand and reports on how the child is doing in school, in therapy, and what the GAL wants for the custodial arrangement for the child.

Of course, whatever the GAL says in court, the final decision in a custody case is for the judge to make.  However, judges frequently give great weight to the statement of the guardian.

 

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Raleigh lawyer Scott Allen has litigated  cases involving guardians in custody, equitable distribution and alimony

If you have questions or need assistance call him at (919) 863-4183.  

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