The Best Interests of the Minor Child

Guardian Ad Litem versus Attorney for the Child

The role of a Guardian Ad Litem (GAL) is to advocate to the Court for what is in the Best Interests of the Child. The guardian ad litem may form his/her own opinion based upon the independent investigation made during the pendency of the litigation which may include information obtained by others including but not limited to doctors, state agencies, therapist, and teachers. No attorney client privilege exists so the Guardian Ad Litem may testify and be cross examined about the opinion being offered.

The Attorney for the Minor Child (AMC) is to be a zealous advocate for the child and to act as an advisor. The rules of professional conduct state in pertinent parts “a lawyer shall abide by a client’s decision concerning the objectives of representation” Rule 1.2; “render candid advice” Rule 2.1 and “as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” Rule 1.14. The attorney client privilege does apply in this type of appointment.

Some of the factors considers in the “Best Interest” standards are the parenting skills; each parents relationship, both psychological and emotional, ties to the child; compliance with Orders of the Court specifically promoting access; past behavior as it related to parenting skills; recommendations of Family Relations; credibility and either parents coercive behavior involving the child in the litigation.

The child’s preference is important but is never conclusive upon the Court. The consideration that must be determined is if the child is of sufficient age and capable of forming an intelligent preference.

I like to describe the difference between the Guardian Ad Litem and the Attorney for the Minor child as follows: if your child wanted to eat ice cream for breakfast, lunch and dinner – every day – the Guardian would advocate that the best interests are not served by this type of diet while the Attorney for the Child would advocate for chocolate, strawberry or vanilla.