The Role of a Guardian ad Litem

By: Ashley Tate Cooper, Esq. (July 19, 2017)

I recently had an opportunity to sit down with and interview Melissa E. Cohen, Esq., a family law attorney at Weinberg & Cooper, LLC (www.weinbergcooper.com) in Hackensack, New Jersey. Ms. Cohen is routinely appointed by Bergen County Family Court Judges to serves as a Guardian ad Litem. We met to discuss this interesting role and her critical involvement with children within the New Jersey Court system.

Q:  What is a Guardian ad Litem?

A:  A Guardian ad Litem, also referred to as a GAL, is an attorney who is appointed in the discretion of the judge assigned to an individual case where custody and/or parenting time is at issue. These are private attorneys, typically who practice in the jurisdiction where the matter is pending and whose work is known to the judge. The authority for the appointment of a Guardian ad Litem is found in New Jersey Court Rule 5:8B (See https://www.njcourts.gov/attorneys/assets/rules/r5-8b.pdf).

Q: What types of cases appoint GALs?

A: In the State of New Jersey, a Guardian ad Litem can be appointed in contested custody cases and/or parenting time disputes.  However, a Guardian will not be appointed in every custody case. This is a device used somewhat sparingly, in more difficult custody cases. Often, a Guardian is required by the Court when the litigation presents a novel issue, an issue of grave importance, or when the Court is concerned that neither party is acting in the best interests of the children.  Examples include whether a child has a medical concern that the parents may be at odds over how to address, a custody case with a child with special needs, or a request by a parent to relocate to another state. A parent can request the appointment of a Guardian ad Litem, or the Court can appoint same on their own.

Q: What is the purpose of your role as a GAL?

A: A Guardian ad Litem’s purpose is to gather information as to the best interests of the child, and to make recommendations to the Court, in written report form. In order to make recommendations to the Court, the Guardian ad Litem will interview the parties, interview the children, and may likely interview them together. The Guardian will want to see how the child interacts with the parents. The Guardian will confer with counsel for the litigants, and often request all of the case documents that will assist in reviewing custody issues such as pleadings, correspondence and the like. Guardians can speak to school personnel, child care providers, medical professionals, therapists and the like, as well as personal collateral contacts such as family members and child care providers, in an effort to collect the most pertinent data as to the children and the current custody situations. A Guardian ad Litem can request their own experts to evaluate the family, such as psychiatric evaluations, independent custody experts and the like.

Q: How does it differ than an attorney for the child?

A: A Guardian ad Litem’s role is not to present the position and desires of a child. The Guardian ad Litem will work more as a fact gatherer to report information pertaining to the best interests of a children to the Court, and to synthesize the information collected to make recommendations to the Court, understanding the statutory custody factors. Under NJ Court Rule 5:8A (See https://www.njcourts.gov/attorneys/assets/rules/r5-8a.pdf), the Court does have the discretion to appoint counsel for the child when the Court believes the parents’ attorneys are not sufficiently protecting the children’s best interest, however, the use of a Guardian ad Litem is far more common.  This also differs from a Law Guardian, which is the attorney for the child in every Division of Child Protection and Permanency case.

Q: Do you see an increase in the appointments of GALs?

A:  I think this varies from county to county, and can vary from judge to judge. Certain judges rely very heavily on the use of certain trusted Guardians.  Other judges only appoint them in the most disputed cases where the parties are taking extraordinary measures that are contrary to the best interests of their children.

Q: Do you enjoy serving as GAL?

A:  Being a GAL is a big responsibility, and often, the cases involve issues that are challenging.  There is a lot of conflict, and the parties are not always happy to be involved with the GAL.  However, as an attorney, I find working as a GAL to be very rewarding as I know my work is really helping children through a hard time. As attorneys, our usual role is as advocate for a party in family Court.  Working as a GAL often gives me a fresh perspective on how to help children through divorce or other family issues.