Husbands and wives are not the only people affected by a divorce; children are also affected. The State of New Jersey recognizes that children also have the right to be represented. In certain circumstances, it may be appropriate to make an application for counsel for a child or a guardian ad litem.
Pursuant to New Jersey Court Rule 5:8A, counsel may be appointed “when the trial court concludes that a child’s best interest is not being sufficiently protected by the attorneys for the parties.” Pursuant to New Jersey Court Rule 5:8B, a guardian ad litem (GAL) may be appointed “to represent the best interests of the child or children if the circumstances warrant such an appointment.”
The main difference between counsel for a minor and a GAL is for whom the attorney is working. Legal counsel works for the child as “an independent legal advocate for the best interests of the child and takes an active part in the hearing, ranging from subpoenaing and cross-examining witnesses to appealing the decision.” The most common case when the Court appoints independent legal advocacy for a child is in abuse and neglect cases and/or termination of parental rights.
On the other hand, a GAL works for the court as “an independent fact finder, investigator and evaluator as to what furthers the best interests of the child.” In complicated custody or visitation matters, a GAL does not have to be an attorney. A GAL reports to the Court and is required to submit a written report memorializing their findings and recommendations. Rule 5:8B details responsibilities of a GAL:
- Interviewing the children and parties.
- Interviewing other persons possessing relevant information.
- Obtaining relevant documentary evidence.
- Conferring with counsel for the parties.
- Conferring with the court, on notice to counsel.
- Obtaining the assistance of independent experts, on leave of court.
- Obtaining the assistance of a lawyer for the child (Rule 5:8A) on leave of court.
- Such other matters as the guardian ad litem may request, on leave of court.
A father and mother should always work together to co-parent their child and should both focus on the child’s best interest, beginning with when the parties are separating/divorcing and continuing through as the child grows older and is in college. In the event a child’s best interest is not being represented, upon application to the Court, legal counsel or a GAL may be appointed.
Lyons & Associate focuses its practice on family law and family law related issues. If you or someone you know is involved in an abuse and neglect and/or termination of parental rights matter, then please call the skilled attorneys at Lyons & Associates, at 908-575-9777 or fill out the online contact form. The attorneys at Lyons & Associates have substantial expertise zealously advocating for children’s best interest and working for the Court as a guardian ad litem.
Written by: Sara E. Kucsan, Esq.