When the Court Appoints a Guardian ad Litem in Tennessee
A Guardian ad Litem in Tennessee is defined as “a lawyer appointed by the court to advocate for the best interests of a child….” The definition goes on to state that the Guardian ad Litem’s Role is also “to ensure that the child’s concerns and preferences are effectively advocated”. TN. R. S. Ct. 40. In a set up that is different from almost every other area of the law, the Guardian ad Litem’s client is not an adult, the parent or the guardian of the minor child. Instead, the minor child themselves is the Attorney’s client. This means that the Guardian ad Litem will advocate on behalf of the minor child – and not for any other party in any case they are called upon to become involved in.
The function and role of a Guardian ad Litem is not as commonly known as other aspects that more commonly appear in divorce cases or family legal matters. This may very well be because a Guardian ad Litem is not appointed in every divorce or other family law case. But these individuals are not anything that are cause for alarm – after all, the entire purpose of the court in regards to children is to ensure that their best interests are served and supported. A Guardian ad Litem is placed to serve exactly for that purpose. Below we discuss a few instances where a Guardian ad Litem may be appointed in a case that involves a minor child.
When Can a Guardian ad Litem be appointed?
Tennessee Code provides that in divorce cases, a Guardian ad Litem may be appointed by the court for any minor child of that marriage. A party to the divorce – one of the divorcing spouses – can also make a motion to appoint a Guardian ad Litem if and when that party feels that it has become necessary in order to protect the best interests of the child.
Why do Courts Have the Ability to Appoint a Guardian ad Litem
The Supreme Court has created Rule 40A, which gives the Court the necessary discretion to appoint a Guardian ad Litem in custody proceedings when it is the finding of the court that the parties to the custody action are not adequately protecting the minor child’s best interests. In such circumstances a Guardian ad Litem might be appointed if the court finds that a separate representation of the child’s best interest has become necessary.
What all of the above can be boiled down to is that a Guardian ad Litem will not be automatically appointed in many situations. The Courts very often defer to a minor child’s parents’ discretion, under the assumption that parents will act in an adequate fashion to protect the best interests of their child(ren). However, a Guardian ad Litem CAN be appointed if the court finds, at any point in the proceedings, that the child’s best interests are NOT, in fact, receiving the best representation.
When May the Court Appoint a Guardian ad Litem?
Rule 40A also provides several factors for the courts to consider when determining whether the appointment of a Guardian ad Litem has become necessary, including:
(i) the needs and unique circumstances of each child, to include the child’s age and developmental level;
(ii) the expressed wishes of the child;
(iii) inappropriate adult influence or manipulation of the minor child;
(iv) the likelihood that the child will have to be questioned by the court or called as a witness;
Please note that the above do not include all of the factors considered by the court, but can give readers an understanding of the kind of factors the court will consider. An experienced attorney can fully analyze any questions you might have concerning your own case. The state of Tennessee has also dictated that a Guardian ad Litem MUST be appointed in cases of child abuse or neglect, and in contested proceedings to terminate parental rights.
Contact Fort, Holloway & Rogers
The experienced Franklin family lawyers at Fort, Holloway & Rogers can help you understand the role a Guardian ad Litem may play in your own case. Contact our office today to discuss your own case.
Sources:
tncourts.gov/rules/supreme-court/40a
law.cornell.edu/wex/guardian_ad_litem
