8.10 Guardian Ad Litem

• Library: Virginia Family Law: A Systematic Approach (Virginia CLE) (2018 Ed.)

8.10 GUARDIAN AD LITEM

8.1001 Appointment.

A. In General. The juvenile and domestic relations district court, in its discretion, may appoint a guardian ad litem to represent the interests of a child in any proceeding before the court. ¹⁰⁰ Where the custody of a child is the subject of controversy or requires determination and each of the parents or other persons claiming a right to custody is represented by counsel, the court generally will not appoint counsel or a guardian ad litem to represent the interests of the child unless the court finds, at any stage in the proceedings in a specific case, that the interests of the child are not otherwise adequately represented. ¹⁰¹ Nevertheless, some courts reason that the interests of parents are always, to some degree, in conflict with the interests of their child in a contested custody dispute. Those courts appoint a guardian ad litem in every child custody dispute. Other courts take a narrower view and decline to appoint a guardian ad litem for a child in a custody case where the contesting parties are represented by counsel and will develop the facts of the case fully.

Once a court has ruled on a custody or visitation claim regarding a child, the court retains jurisdiction of the matter throughout the child's minority years. ¹⁰² This authorizes the court to order the continued appointment of the guardian ad litem until the child reaches the age of majority, even when no particular case is before the court. ¹⁰³

[Page 656]

The circuit court has the inherent authority under the common law doctrine of parens patriae to appoint a guardian ad litem for a child who is the subject of a custody dispute. ¹⁰⁴ Additionally, a guardian ad litem may also be required for an adult party in the litigation if the adult is a "person under a disability," such as an adult suffering a serious mental disability. ¹⁰⁵

B. Procedure. The procedures for appointing a guardian ad litem for a child in a custody or visitation dispute vary widely from jurisdiction to jurisdiction. Some courts appoint a guardian ad litem for each child who is the subject of a custody or visitation dispute, while others do not. The guardian ad litem may be arranged by the juvenile and domestic relations district court intake staff or the clerk of the court or may be selected by the judge. In any event, an attorney appointed to serve as a guardian ad litem in the juvenile and domestic relations district court is appointed by an order of the court. ¹⁰⁶

If...