Your case has been brought to court and an attorney is appointed to represent your child(ren)…but not exactly- that would be an attorney ad litem. Rather, this attorney, known as a guardian ad litem, is purported to represent the ‘best interests’ of your children…or something. The guardian ad litem is not your child(ren)’s attorney- that’s a common misconception. The reality is mixed up in false assumptions, a dead language, poorly defined terms and the highly subjective nature of the family and juvenile court systems.
Guardian ad litem is a legal term with Latin roots meaning: guardian for the purposes of legal action only. They are not functioning as your child’s attorney; an attorney ad litem (in Latin: attorney for the purposes of legal action only) would be your child’s attorney, while the guardian ad litem represents what are commonly referred to as the ‘best interests’ of your child(ren) and is appointed by the court to represent those interests. Those interests may or may not represent the wishes of your child(ren), which would be represented by an attorney ad litem. These interests are, in theory, meant to be what is best for the child(ren)- but what’s best is in the eyes of the beholder. Considering that the guardian ad litem’s recommendations hold heavy weight, this gives the attorney filling this role, including his or her own biases, enormous power that is rarely, if ever, properly appreciated- both by those who fill the role and the all parties to such a case.
There is no universally objective definition for what constitutes the ‘best interests’ of a child, which is a part of the problem. Everyone has a different idea of what a particular child needs and pretending the government is any better at that than the average parent is silly. When you’re facing off against the government or another parent in litigation, never forget that what you as the parent believe the best interests of your child to be holds no weight here if they’re not identical to the way the court sees them. Factors taken into account are subjective and can include access to food, supervision, healthcare, shelter and more- more often, the stereotypically feminine roles in the family unit. This can favor the parent primarily responsible for these stereotypically feminine responsibilities when their ability to care is not in question by the court and disfavor that same parent when that ability is in question. For single parents, they are filling all roles (or otherwise outsourcing them), so this applies in such circumstances, as well. When partisan political issues surrounding child rearing such as vaccination come into play, these can be taken into account, too- which means the politics of the state in which you reside can also change the context of how the best interests of your child(ren) are defined. The best interests of the child from the perspective of CPS and the courts is best thought of in the context of liability; in your custody, what theoretical scenarios could occur involving the mere presence of your child(ren) where something bad might have a small chance of occurring that might reflect badly on the court if the news media got ahold of the story after the court had ruled in your favor?
Historically, the responsibility for looking out for best interests falls on the parents. In court, parent’s capacity and competency to provide a safe upbringing for the child(ren) is in question and the standard used by the courts (who appoint the guardian ad litem)- with all of their biases, judgments and lack of context throughout your and your child(ren)’s lives. While the guardian ad litem tends to have a similar assessment to CPS and the courts, they’re supposed to emphasize their focus on two additional areas:
- The emotional attachment your child(ren) have to their biological family.
- The relationships and community connections.
At the same time, the guardian ad litem is bound by the rules and policies of the court and is unlikely to be a strong advocate for the extremes- full custody to one parent or termination of parental rights- except in more blatant cases of severe abuse that are simultaneously in criminal court and the child has also expressed a clear lack of desire to return home, where they may strongly advocate for termination of parental rights.
Many parents assume the guardian ad litem is actually an attorney ad litem and this can result in mistakes with profound consequences when strategizing your approach to fighting for your child(ren). Some parents feel a false sense of security, because they believe the guardian ad litem will listen to their child(ren)’s wishes and advocate for reunification (in our experience, this is not often the case). This may also result in parents letting the guard down when speaking to the guardian ad litem, rather than being as reserved as they would be with other officers of the court. The guardian ad litem is as much an officer of the court as any other officer of the court and any interactions you have with them should reflect that.
If the guardian ad litem is talking to your children, what they share with the guardian ad litem, as well as actions taken during supervised or unsupervised visitation, can affect how the court rules. It’s vital to keep in mind how information that could be made to characterize you in a negative light can get to the court. This means all interactions with CPS (and any contracted personnel on your case), with your attorney, with the court and with the guardian ad litem) by you, your children, witnesses or any other parties must be accounted for.
If you are in court on a CPS or dependency case, we at Heartwork Defense strongly recommend you speak to your attorney about interacting with your children and how the guardian ad litem could help or hurt your case. If you have decided to approach your case pro se (on your own behalf), you should consult someone you know and trust who has at least some academic or professional training and experience in law to ensure you’re making the right moves. If you’re in a divorce, child custody, guardianship, or adoption case, remember the emphasis on the stereotypically feminine roles and try not to get on the wrong side of the guardian ad litem if possible (it will make your case a lot easier!). Remember, the guardian ad litem is not your friend, but they may not be your enemy, either. Listen to your attorney, be cautious in your approach and document all interactions. The more you know, the better prepared you’ll be.