During the course of any family law case in Texas, it might become necessary for a Court to appoint someone to represent a child. The Court can either appoint a guardian ad litem or an attorney ad litem or one person to handle both roles. The key to deciding whether such an appointment is appropriate rests upon a determination that a minor needs their own independent legal representation or protection.
The Attorney Ad Litem
In the Texas Family Code, an Attorney Ad Litem is defined as “an attorney who provides legal services to a person, including a child . . . ” It is important to understand that in any family law case, a minor often does not have a legal representative unless the Court appoints one. When such representation is needed, the Court would handle such an appointment.
Once an attorney ad litem is designated, they shall interview the involved minor, the parties, and any witnesses to determine how best to represent the minor. Further, they must conduct an investigation into the facts of the case and also determine the child’s wishes to the extent possible. Thereafter, that representative will be responsible for taking any actions that they deem necessary that could include conducting discovery, filing motions, and moving to promote settlement of the litigation, if possible.
The Guardian Ad Litem
This person is appointed to represent “the best interest of the child” and does not have to be a lawyer. Volunteer advocates, non-attorney licensed professionals such as counselors and social workers, and any adult whom the court determines to be competent can qualify to serve as a guardian ad litem. Lawyers can also be appointed to the dual role of attorney and guardian ad litem.
The powers and duties of a guardian ad litem are enumerated in the Texas Family Code. Guardians are expected to conduct an investigation into the circumstances and wishes of the child and encourage a resolution of the case in a manner that is consistent with the best interest of the young person. Additionally, this representative is responsible for speaking in Family Law Court regarding what is most advantageous for the child. They can be ordered to prepare written reports for the Court or testify at trial in contested cases.
The Difference Between Guardian And Attorney Ad Litem
Generally speaking, attorney’s are not witnesses and act as advocates for their client. The same is true of an attorney ad litem. If a lawyer becomes a witness in a case, it is most often not appropriate for them to continue serving in the role as an attorney unless they have been appointed as both guardian and attorney ad litem.
A guardian ad litem is intended to become witnesses at the time of their appointment. There in lies the primary difference between an attorney and a guardian ad litem. Attorneys act as advocates for a child’s position in court, where a guardian acts as a witness as to what is in the best interest of the child.
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