Guardian Ad Litem for Guardianship Process 623-10-20-35
(Revised 2/20/07 ML #3066)
A guardian ad litem is a person who represents the interests of a minor in legal proceedings, where the minor’s interest may not coincide with those of natural guardians, such as parents. Guardians ad litem may be familiar to social workers due to their involvement in child welfare proceedings.
The activities of the guardian ad litem may vary, depending on the circumstances of the individual case. Generally, the guardian ad litem has the responsibility to advocate the best interests of the minor. By the time the guardian ad litem is appointed in the legal “track” of the subsidized guardianship process, the prospective legal guardian will already have completed interviews and a home assessment. In most cases, persons not fit and willing or appropriate to be a legal guardian will have been ruled out, leaving little or no basis for objection by the guardian ad litem to the prospective legal guardian.
A guardian ad litem normally charges a fee for the representation, thus creating some additional expense; however, this expense may not fall on the prospective guardian. N.D.C.C. § 27-20-49 provides that the supreme court shall pay reasonable compensation for the guardian ad litem, unless the court finds that the parent or other persons legally obligated to care for and support the child are financially able to pay all or part of the compensation of the guardian ad litem.
Both chapter 27-20 and chapter 30.1-27 address circumstances under which the court may or must appoint a guardian ad litem for a minor to be made a ward, and the two chapters use very similar language. N.D.C.C. § 27-20-48 states the court shall appoint a guardian ad litem if the child has no parent, guardian (which the child will not have, since this is a proceeding to establish a guardian), or custodian appearing on the child’s behalf or their interests conflict with the child’s, or in any other case in which the interests of the child require a guardian ad litem. (Every child eligible for North Dakota’s subsidized guardianship program has a public custodian.) The court may appoint a guardian ad litem upon a party’s request, or on its own.
The North Dakota Supreme Court has adopted Rule 8.7, North Dakota Rules of Court, effective March 1, 2000, addressing the responsibilities of a guardian ad litem. In its present form, this rule is not binding on guardians ad litem in a petition for establishment of a legal guardian, but it may be a useful resource to understanding the guardian ad litem’s role, and may suggest some ways in which the guardian ad litem could be helpful to the process.
