Explanation of Guardian ad Litem Appointment

Date: XX.XX.XX

Regarding: Explanation of Guardian ad Litem Appointment

Dear XXXX,

A public/private guardian ad litem has been appointed in your case. This is a form letter explaining guardian ad litem appointments. Since this is a form letter, it is a general explanation and not specific to your case. If you would like greater explanation regarding the guardian ad litem and his or her role in your case, please, feel free to call us and ask any questions you may have. We will be happy to speak with you.

There are two types of guardians ad litem. The first type is a public guardian ad litem (public GAL). Public GALs are lawyers who are state employees. The investigate cases of abuse and neglect. The second type is a private guardian ad litem (private GAL). Private GALs are not state employees; they are private-practice attorneys. Private GALs are appointed in high-conflict divorce and child-custody cases. They conduct an investigation and make recommendations regarding the best interests of your child(ren). Enclosed is Utah Code Annotated, Section 78A-2-228, which explains the role and duties of a private guardian ad litem.

Please note that private GALs are paid by the parties. This means you will pay the private GAL directly. This payment includes an up-front retainer — usually in the amount of $500. Most often, parties share the cost of a private GAL equally, but that is not always the case. Ultimately, the Court will determine allocation of costs. Most private GALs bill an hourly rate of $150, although it is sometimes higher.

Pay the private GAL retainer as quickly as possible. While a GAL cannot find against you because of non-payment, it can only help you to pay. Also, keep up with any monthly invoices from the GAL. Again, you do not want to force the GAL to hound you for payment. That could only hurt your case.

Both public GALs and private GALs investigate and make recommendations regarding the best interest of your child(ren). Since they are not parties, judges and commissioners trust their judgment and investigation findings. In fact, judges and commissioners will usually go along with the GAL recommendations. In light of this, GAL recommendations are very important.

The best way to interact with a GAL is to be upfront and honest about everything. Another important aspect in good GAL relations is providing the GAL as much information as possible about the situation. It is a good idea to make first contact with the GAL so the GAL receives accurate information from us as quickly as possible. Please, be very nice to the GAL. You do not want the GAL to dislike you. Disliking you increases the chances the GAL will rule in the other party’s favor. The GAL will ask to meet with your children. Facilitate that meeting. The GAL will likely ask to interview you personally, and that interview will likely take place outside my presence. That is fine; however, if you feel you need me there during the interview, let me know and we will discuss possibilities.

If you have any questions at all about guardians ad litem, please call us at 801.651.8038.

Sincerely,

/s/ Marco Brown

Marco Brown

78A-2-228. Private attorney guardian ad litem -- Appointment -- Costs and fees -- Duties -- Conflicts of interest -- Pro bono obligation -- Indemnification --

Minimum qualifications.

(1) The court may appoint a private attorney as guardian ad litem to represent the best interests of the minor in any district court action when:

(a) child abuse, child sexual abuse, or neglect is alleged in any proceeding, and the court has made a finding that an adult party is not indigent, as defined by Section 77-32-202; or

(b) the custody of, or parent-time with, a child is at issue.

(2) (a) The court shall consider the limited number of eligible private attorneys guardian ad litem, as well as the limited time and resources available to a private attorney guardian ad litem, when making an appointment under Subsection (1) and prioritize case assignments accordingly.

(b) The court shall make findings regarding the need and basis for the appointment of a private guardian ad litem.

(c) A court may not appoint a private guardian ad litem in a criminal case.

(3) When appointing a private attorney guardian ad litem, the court shall:

(a) state in its order that the court is appointing a private attorney guardian ad litem, to be assigned by the Office of Guardian ad Litem, to represent the best interests of the child in the matter; and

(b) send the order described in Subsection (3)(a) to the Director of the Office of Guardian ad Litem, in care of the Private Attorney Guardian ad Litem program.

(4) The court shall:

(a) specify in the order appointing a private attorney guardian ad litem the specific issues in the proceeding that the private attorney guardian ad litem shall be involved in resolving, which may include issues relating to the custody of the child and a parent-time schedule;

(b) to the extent possible, bifurcate the issues described in Subsection (3)(a) from the other issues in the case in order to minimize the time constraints placed upon the private attorney guardian ad litem; and

(c) except as provided in Subsection (6), issue a final order within one year after the day on which the private attorney guardian ad litem is appointed in the case:

(i) resolving the issues described in Subsection (4)(a); and

(ii) terminating the private attorney guardian ad litem from the appointment to the case.

(5) The court shall issue an order terminating the appointment of a private guardian ad litem made under this section if:

(a) after receiving input from the private attorney guardian ad litem, the court determines that the minor no longer requires the services of the private attorney guardian ad litem; or

(b) there has been no activity in the case for a period of six consecutive months.

(6) A court may issue an order extending the one-year period described in Subsection (4)(c) for a specified amount of time if the court makes a written finding that there is a compelling reason that the court cannot comply with the requirements described in Subsection (4)(c) within the one-year period.

(7) When appointing a private attorney guardian ad litem under this section, a court may appoint the same private attorney guardian ad litem who represents the minor in another proceeding, or who has represented the minor in a previous proceeding, if that private attorney guardian ad litem is available.

(8) Upon receipt of the court's order, described in Subsection (3), the director or the director's designee shall assign the case to an eligible private attorney guardian ad litem, if available and as established by rule under Subsection (17).

(9) (a) When appointing a private attorney guardian ad litem, the court shall:

(i) assess all or part of the attorney guardian ad litem fees, courts costs, and paralegal, staff, and volunteer expenses against the parties in a proportion the court determines to be just; and

(ii) designate in the order whether the private attorney guardian ad litem shall, as established by rule under Subsection (17):

(A) be paid a set fee and initial retainer;

(B) not be paid and serve pro bono; or

(C) be paid at a rate less than the set fee established by court rule.

(b) If a party claims to be impecunious, the court shall follow the procedure and make a determination, described in Section 78A-2-302, to set the amount that the party is required to pay, if any, toward the private attorney guardian ad litem's fees and expenses.

(c) The private attorney guardian ad litem may adjust the court-ordered fees or retainer to an amount less than what was ordered by the court at any time before being released from representation by the court.

(10) Upon accepting the court's appointment, the assigned attorney shall:

(a) file a notice of appearance with the court within five business days of the day on which the attorney was assigned; and

(b) represent the best interests of the minor until released by the court.

(11) The private attorney guardian ad litem:

(a) shall be certified by the director of the Office of Guardian ad Litem as meeting the minimum qualifications for appointment; and

(b) may not be employed by, or under contract with, the Office of Guardian ad Litem unless under contract as a conflict guardian ad litem in an unrelated case.

(12) The private attorney guardian ad litem appointed under the provisions of this section shall:

(a) represent the best interests of the minor from the date of the appointment until released by the court;

(b) conduct or supervise an ongoing, independent investigation in order to obtain, first-hand, a clear understanding of the situation and needs of the minor;

(c) interview witnesses and review relevant records pertaining to the minor and the minor's family, including medical, psychological, and school records;

(d) (i) personally meet with the minor, unless:

(A) the minor is outside of the state; or

(B) meeting with the minor would be detrimental to the minor;

(ii) personally interview the minor, unless:

(A) the minor is not old enough to communicate;

(B) the minor lacks the capacity to participate in a meaningful interview; or

(C) the interview would be detrimental to the minor;(iii) to the extent possible, determine the minor's goals and concerns regarding custody or visitation; and

(iv) to the extent possible, and unless it would be detrimental to the minor, keep the minor advised of:

(A) the status of the minor's case;

(B) all court and administrative proceedings;

(C) discussions with, and proposals made by, other parties;

(D) court action; and

(E) the psychiatric, medical, or other treatment or diagnostic services that are to be provided to the minor;

(e) unless excused by the court, prepare for and attend all mediation hearings and all court conferences and hearings, and present witnesses and exhibits as necessary to protect the best interests of the minor;

(f) identify community resources to protect the best interests of the minor and advocate for those resources; and

(g) participate in all appeals unless excused by the court.

(13) (a) The private attorney guardian ad litem shall represent the best interests of a minor.

(b) If the minor's intent and desires differ from the attorney's determination of the minor's best interests, the attorney guardian ad litem shall communicate to the court the minor's intent and desires and the attorney's determination of the minor's best interests.

(c) A difference between the minor's intent and desires and the attorney's determination of best interests is not sufficient to create a conflict of interest.

(d) The private attorney guardian ad litem shall disclose the intent and desires of the minor unless the minor:

(i) instructs the private attorney guardian ad litem to not disclose the minor's intent and desires; or

(ii) has not expressed an intent and desire.

(e) The court may appoint one attorney guardian ad litem to represent the best interests of more than one child of a marriage.

(14) In every court hearing where the private attorney guardian ad litem makes a recommendation regarding the best interest of the minor, the court shall require the private attorney guardian ad litem to disclose the factors that form the basis of the recommendation.

(15) An attorney guardian ad litem appointed under this section is immune from any civil liability that might result by reason of acts performed within the scope of duties of the attorney guardian ad litem.

(16) The Office of Guardian ad Litem and the Guardian Ad Litem Oversight Committee shall compile a list of attorneys willing to accept an appointment as a private attorney guardian ad litem.

(17) Upon the advice of the director of the Office of Guardian ad Litem and the Guardian Ad Litem Oversight Committee, the Judicial Council shall establish by rule:

(a) the minimum qualifications and requirements for appointment by the court as an attorney guardian ad litem;

(b) the standard fee rate and retainer amount for a private attorney guardian aditem;

(c) the percentage of cases a private attorney guardian ad litem may be expected to take on pro bono;

(d) a system to:

(i) select a private attorney guardian ad litem for a given appointment; and

(ii) determine when a private attorney guardian ad litem shall be expected to accept an appointment pro bono; and

(e) the process for handling a complaint relating to the eligibility status of a private attorney guardian ad litem.

(18) Any savings that result from assigning a private attorney guardian ad litem in a district court case, instead of a guardian ad litem from the Office of Guardian ad Litem, shall be applied to the private guardian ad litem program.