Abstract

This article discusses the role of the guardian ad litem, as Part I dissects each of the five potential guardian ad litem roles: Lawyer, Expert Witness, investigator/Lay Witness, Mediator/Facilitator, and Party. For each role, this section explores: how the well-known role is typically performed within the court system as a whole; how that role might be performed in a custody case, consistent with its occurrence elsewhere in the judicial system; and how that role, when held by a guardian ad litem, actually is performed in a custody context. Part II endeavors to explain how the guardian ad litem figure has become so confusing by separately discussing five factors which have muddled the role of court-appointed officials in dissolution-custody cases. Section A briefly reviews the history of divorce law and reflects on the changing ways in which courts and legislatures have viewed the nature of the family and the rights of parents to the custody of their children. Section B then looks at the origins of the term guardian ad litem and its application in non-dissolution contexts. Section C discusses the little-used option of appointing lawyers for children. Part D focuses on the differing perspectives of the participants in a divorce proceeding. And finally, Section E examines the alleged efficiencies and real costs of using guardians ad litem. The Conclusion offers the following recommendations: (1) the Latin term, guardian ad litem should be eliminated entirely; (2) court appointment of an individual should be limited to clearly articulated functions consistent with a known role; and (3) courts should make such appointments sparingly in custody cases arising from a dissolution.

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