If you are in a custody dispute, you may find yourself saying, or hearing your soon to be ex-spouse saying, “why are we arguing over who is best for the kids—let’s ask the kids themselves which of us they want to be with!”

While this may seem like common sense, it is in fact highly problematic. To some extent, a court can consider the wishes of the children, but only when the children are older. Even then, courts are hesitant to use the kids as witnesses in a family law case between their own parents, or to have kids provide testimony that could be harmful to one parent or the other.

The Role of the Guardian

Yet, the best interests of the children still remain paramount. So how does the court determine what is best for the kids, or what the kids may want? The answer is often through the appointment of what is known as a guardian ad litem (Guardian).

A Guardian is a neutral party, who may be an attorney (not involved in the case), but does not have to be an attorney. Many times, Guardians may be other professionals, such as counselors or psychologists.

The Guardian’s job is to get to know the children, take a sneak peak into the interactions between the kids and each parent, evaluate the home life of the parents and the kids.

The Guardian is often given the power to research the kids’ activities, such as extracurriculars or hobbies, or interview people in those activities, to see how the child is doing, or how involved each parent may be in those activities. The Guardian will then make recommendations to the court.

In that way, the Guardian is like the spokesperson for the children to the court, keeping them from being subjected to the legal proceedings.

How the Guardian is Appointed and Challenged

The Guardian will usually issue a written report of his or her findings, along with a list of who was interviewed, or who the Guardian spent time with in coming to the conclusions in the report.

The Guardian is usually appointed by a court, but parties, if they feel that a Guardian would be beneficial, can ask to have one appointed and the court will usually oblige. The parties often will share the cost of the Guardian, unless there is an income disparity between the parties.

The Guardian is neutral as to both parents, but ultimately, the Guardian’s report may be more favorable to one parent than to the other. In trial, the Guardian can be deposed, and called as a witness to be questioned.

When Guardians are Used

Guardians are not used in every case—in fact, they usually are only used where there is high conflict between the parties, and where the parties are unable to agree on their own about custody and visitation basics.

Do you have a custody or visitation problem in your divorce case? Contact our New Jersey Divorce attorneys at The Law Office of Agnes Rybar LLC to help you in your divorce.


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