Guardian Ad Litem

In matrimonial actions, a Guardian ad Litem (hereinafter referenced as “GAL”) may be appointed on behalf of a minor or alleged mentally incapacitated litigant. The role of a GAL is limited and the scope of responsibilities is dependent upon the initial purpose of the appointment.

The appointment of a GAL in all court proceedings is authorized by statute. Specifically, N.J.S.A. 4:26-2 allows the Court to appoint a GAL for a minor or alleged mentally incapacitated person by: (1) a verified petition of a friend on behalf of the minor or alleged mentally incapacitated person; (2) motion filed by a party to the action; or (3) the Court’s own motion. In this context, the initial purpose of the GAL’s appointment is “to advise the court as to whether a formal competency hearing may be necessary and if so, to represent the alleged mentally incapacitated person at that hearing.” However, even if the court finds a formal competency hearing is not necessary, the GAL may nevertheless continue to serve in this role if this ongoing appointment will protect the interests of the litigant. The GAL will serve in this capacity until conclusion of the court matter, death of the minor/allegedly incapacitated individual or upon termination by court Order. In this context, the GAL is limited to protecting the ward’s interests within the litigation but is prohibited from taking substantive actions on the ward’s behalf, as this latter role is reserved for a Guardian. Julius v. Julius, 320 N.J. Super. 297, 309 (App. Div. 1999).

When custody and/or parenting time is an issue in a Family Part matter, however, the GAL undertakes an expanded role. Pursuant to Court Rule 5:8B, “Appointment of Guardian Ad Litem” the Court may appoint a GAL under these circumstances to represent the child(ren)’s best interest and through this appointment, the GAL serves as “independent fact finder, investigator and evaluator as to what furthers the best interests of the child.” Official Comment for Rules 5:8A and 5:8B. In this regard, the GAL is permitted to engage in the following:

  1. Interviewing the children and parties.
  2. Interviewing other persons possessing relevant information.
  3. Obtaining relevant documentary evidence.
  4. Conferring with counsel for the parties.
  5. Conferring with the court, on notice to counsel.
  6. Obtaining the assistance of independent experts, on leave of court.
  7. Obtaining the assistance of a lawyer for the child (Rule 5:8A) on leave of court.
  8. Such other matters as the guardian ad litem may request, on leave of court

R. 5:8B(a).

While the aforementioned tasks are discretionary, the GAL for the child(ren) must prepare a written report and submit it to the court, inclusive of findings and recommendations. In addition, the GAL shall be available to testify and is subject to cross-examination. The Court is afforded wide latitude in selecting the appropriate individual to serve in this role. As set forth in the Official Comment for Rules 5:8A and 5:8B, “[t]he GAL can be an attorney, a social worker, a mental health professional or other appropriate person” with the guiding decision typically dependent upon the specific issues in a particular case.

The appointment of a GAL in matrimonial actions is not commonplace. In fact, the Commentary to R. 5:8B explicitly states that such appointments are not to be rendered routinely. As part of this determination, another factor to consider is the cost of the GAL. Per R. 5:8B(d), the GAL’s hourly fee is set forth in the initial Order but the court has the ability to allocate the final payment of fees between the parties. To that end, the GAL’s appointment ends and thus, fees cease to accrue upon the entry of a final judgment or by Order of the court. R. 5:8B(c).

If you are involved in a Family Part dispute and believe your case will benefit from a Guardian ad Litem, it is important to retain an attorney with sufficient knowledge in this area of the law. At Donahue Hagan Klein & Weisberg, our attorneys have handled several cases involving the appointment of a Guardian ad Litem and can provide legal representation and advice in this unique area of the law.


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Effective September 14, 2015