When You Should Expect the Court to Appoint a Guardian ad Litem

A Guardian ad Litem is defined as “a lawyer appointed by the court to advocate for the best interests of a child and to ensure that the child's concerns and preferences are effectively advocated”. TN. R. S. Ct. 40. The minor child is a client of the Guardian ad Litem, and so the Guardian will advocate on behalf of the minor child, and not for any other party in the legal matter.

A Guardian ad Litem is not appointed in every domestic relations or family law case that involves a minor child. Below are a few ways a Guardian ad Litem can be appointed in a case involving a minor child.

When a Party to the Legal Action, or the Court, can Appoint a Guardian ad Litem

Tennessee Code Annotated § 36-4-132 states that “In an action for dissolution of marriage involving minor children, upon its own motion or upon the motion of either party, the court may appoint a guardian ad litem for any minor child of the marriage.” This means that during a divorce with children, a party to the divorce, or the Court, can make a motion to appoint a Guardian ad Litem if they feel it is necessary to protect the best interests of the child.

When the Court has Discretion to Appoint a Guardian ad Litem

Supreme Court Rule 40A gives the Court discretion to appoint a Guardian ad Litem in custody proceedings when “the court finds that the child′s best interests are not adequately protected by the parties and that separate representation of the child′s best interests is necessary.” Guardians are not automatically appointed in some situations because the Court assumes that the parents will adequately protect the best interests of the minor child. The Court can appoint a Guardian ad Litem at any stage of the proceeding.

Rule 40A also gives the Court certain factors to analyze in determining if there is a need for a Guardian ad Litem. Those factors are:

(i) the circumstances and needs of the child, including the child′s age and developmental level;

(ii) any desire for representation or participation expressed by the child;

(iii) any inappropriate adult influence on or manipulation of the child;

(iv) the likelihood that the child will be called as a witness or be questioned by the court in chambers and the need to minimize harm to the child from the processes of litigation;

(v) any higher than normal level of acrimony indicating the parties' lack of objectivity concerning the needs and best interests of the child;

(vi) any interference, or threatened interference, with custody, access, visitation, or parenting time, including abduction or risk of abduction of the child;

(vii) the likelihood of a geographic relocation of the child that could substantially reduce the child′s time with a parent, a sibling, or another individual with whom the child has a close relationship;

(viii) any conduct by a party or an individual with whom a party associates which raises serious concerns for the safety of the child during periods of custody, visitation, or parenting time with that party;

(ix) any special physical, educational, or mental-health needs of the child that require investigation or advocacy;

(x) any dispute as to paternity of the child; and

(xi) any other factors necessary to address the best interests of the child.

After weighing the above factors, the Court will conclude if a Guardian ad Litem is necessary or not. If the Court finds that one is needed, the Court will appoint a Guardian ad Litem to represent the best interests of the minor child, and conduct a thorough and impartial investigation to gather facts to present to the Court.

When the Court Must Appoint a Guardian ad Litem

Tennessee law dictates that the Court must appoint a Guardian ad Litem under certain circumstances. Supreme Court Rule 13(d)(2) mandates the appointment of a Guardian ad Litem in the following situations:

Child Abuse or Neglect - When a child is the subject of reports of abuse or neglect under Tennessee Code Annotated § 37-1-401 to § 37-1-411. A child can become the subject of reports of abuse or neglect when a person reports to a judge having juvenile jurisdiction over the child, the Department of Children’s Services, a sheriff of the county where a child resides, or the chief law enforcement official of the municipality where the child resides, knowledge of any child who is suffering from or has sustained any wound, injury, disability, or physical or mental condition caused by brutality, abuse or neglect or that, on the basis of available information, reasonably appears to have been caused by brutality, abuse or neglect.

Contested Proceedings to Terminate Parental Rights - In proceedings to terminate parental rights, unless the termination is uncontested. The Court of Appeals of Tennessee considers a termination proceeding to be contested if the party whose rights will be terminated files an answer to the initial petition, requesting that their rights not be terminated. (see In re The Adoption of Gracie M.M., 2010 WL 22814, at *1 (Ct. App. Tenn. 2010).

Once a Guardian ad Litem is appointed they will serve as long as provided by the Court or upon completion of legal action.

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