Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

How Does A Court Protect Children In Crisis During A New Jersey Custody Case?

 

The toughest part of being a New Jersey Divorce Attorney handling child custody issues is when I confront a case in which the children are in “divorce crisis.”  Depending upon what I learn, we may have a New Jersey Child Custody case on our hands.  First, I shall ask if the children have any severe disabilities and, if so, the magnitude of their illness or medical condition.  When I hopefully receive a positive answer to such a difficult question, I ask my client, “how are the children doing lately.”  All too often, I see the parents face fall.  As a New Jersey Child Custody Lawyer, I then have a two-pronged query that I immediately pursue with my client: 

1.     How is your child doing academically:

 

Often when a child is in divorce crisis, an honor roll student’s grades suddenly plummet.  This is a big red flag for the New Jersey Divorce Lawyer;

 

2.     Has your child been “acting out” at school, home or both?

 

Again, if a traditionally well behaved child is now getting into trouble at school, I investigate further.  Is the school calling you for meetings regarding your child’s behavior?  Does your child suddenly face detentions or suspensions from school?  At home, are you suddenly facing an unruly child who used to be a good boy or girl?

Now, if I determine that we are dealing with a child in divorce crisis, I explain to my client that we may apply to the Superior Court of New Jersey to have a Guardian Ad Litem appointed to protect the best interests of the child.  If further explain that this persons role, under well established New Jersey law, it to act like the “attorney for the child.”  Let’s explore further.

A guardian ad litem is a person appointed by the court to represent the interest of a minor, unborn child, or person with diminished capacity. They are always adults, and commonly lawyers, that take on legal responsibility for the well-being of such people. A guardian ad litem differs from a traditional guardian because he or she is selected by the court to represent someone’s interests only during the course of legal action. With that said, it is extremely rare for a guardian ad litem to be removed during the course of legal action. If the guardian ad litem is “found incompetent due to some disability such as drug addiction or alcoholism, removal would be warranted” (Zukerman by Zuckerman v. Piper Pools, Inc., 232 N.J. Super. 74 (App. Div. 1989)).   

While a guardian ad litem has a broad range of responsibility, they have the most responsibility in cases that involve children. These cases typically include, among other things, child neglect and abuse cases and child custody cases. Furthermore, a guardian ad litem “acts on behalf of a court for the benefit of a child and serves as an independent fact-finder, investigator, and evaluator of what furthers the best interests of the child” (Isaacson v. Isaacson, 348 N.J. Super. 560 (App. Div. 2002).  

The appointment of a guardian ad litem in cases involving children is governed by New Jersey Court Rule 5:8B(a). In these cases where a child needs help protecting his or her rights in court, a guardian ad litem may be appointed by court order to represent the best interests of the child. Although it is more common for the court to appoint a guardian ad litem to a child in such cases of custody or abuse, occasionally one or both of the child’s parents will apply for a guardian ad litem to be appointed instead.   

Once a guardian ad litem is appointed, he or she will begin to document his or her findings pursuant to the child’s case matter.  Under New Jersey Court Rule 5:8B(a), the guardian ad litem may interview the child, their parents and other relatives or people who may have pertinent information.  The guardian ad litem may also collect any and all relevant documentation or information.  They may seek such information from the Court, government agencies and speak to either or both counsel in the case.  With special permission from the Court, they may seek the advise of other NJ custody experts as well. 

The guardian ad litem must file a written report with the court detailing those findings. Furthermore, in his or her written report, the guardian ad litem must provide the court with recommendations on how to resolve the matter and proceed. He or she must be available to testify in court on behalf of the child as well. Moreover, a guardian ad litem will have more responsibilities in addition to filing a written report with the court.

Being selected to be a guardian ad litem is usually not a surprise for most lawyers chosen. Yet, even if it is, you are obliged to accept such appointment. Very rarely will a lawyer tell the court that he or she cannot represent a minor or person with diminished capacity who is not capable of protecting his or her rights in court. However, lawyers chosen to be guardian ad litem do have the right to consent or decline to the appointment pursuant to Rule 5:8B(b). If a lawyer or adult truly believes that he or she cannot accept the appointment of guardian ad litem, he or she will have to show good cause for declining the appointment. This must be in writing and sent to the court in advance.                  

 

A common question that most have if a guardian ad litem is appointed is what will this cost? The fee for guardian ad litems is governed by Rule 5:8B(d). It states that the hourly rate to be charged will be fixed in the initial appointing order. Also, the guardian ad litem is responsible for submitting informational monthly statements to the parties. Additionally, the court will typically allocate the fee for the guardian ad litem between both of the child’s parents. A fairly recent discussion of fees for guardian ad litems can be found in the case Matter of Adoption of a Child by E.T., 302  N.J. Super. 533 (App. Div. 1997). The Superior Court of New Jersey, Appellate Division held that “the fees allowed a guardian ad litem are more properly considered to be costs of the proceedings than counsel fees. Particularly where the court appoints a guardian ad litem in its inherent discretion, it has the concomitant discretion to make an award of fees, chargeable to the parties as may be appropriate in the circumstances.” Id at 542.       

 

For further questions on guardian ad litems, please contact my office today. Thank you.