Guardian Ad Litem FAQs
1. What is a guardian ad litem? Show answer
In Maine a guardian ad litem is a person assigned by the court to represent a child in certain family law, child custody, probate matters, and in all child protection cases.
2. What is the role of a guardian ad litem? Show answer
The guardian ad litem obtains and provides information needed by the court for the court to determine the best interests of a child.
3. Who can be a guardian ad litem? Show answer
An approved (or “rostered”) guardian ad litem must be a licensed attorney or a qualified mental health professional holding one of these licenses:
- Licensed Clinical Social Worker (LCSW);
- Licensed Professional Counselor (LPC);
- Licensed Clinical Professional Counselor (LCPC);
- Licensed Master Social Worker (LMSW);
- Licensed Marriage Family Therapist (LMFT);
- Licensed Pastoral Counselor (LPaC);
- Psychiatrist; and/or
4. Is there a listing of approved guardians ad litem? Show answer
Applicants who wish to serve as guardians ad litem must meet criteria set out in the Maine Rules for Guardians ad litem. They apply to the Chief Judge of the Maine District Court. The Chief Judge reviews the application and collects additional information about the applicant. If the applicant satisfies the qualification criteria and there is a need for additional guardians ad litem, the Chief Judge may add the applicant to a list, which is called the “roster.”
5. Do guardians ad litem receive special training? Show answer
In addition to the training which is required by licensing authorities, a rostered guardian ad litem must complete 18 to 22 hours of court-approved pre-service training, or must have successfully completed the Court Appointed Special Advocate (CASA) training program.
6. Do applicants to be guardians undergo a background check? Show answer
Yes. Rostered guardians ad litem must have passed criminal and child protection background checks. They must also demonstrate good character and fitness to serve as a guardian ad litem.
7. How are guardians ad litem assigned to cases? Show answer
If a guardian ad litem is necessary in a case, the court assigns a guardian ad litem from the roster of guardians ad litem. The court can assign a guardian ad litem on its own motion, or on motion of a party to the case. Sometimes the parties to a case agree on assignment of a guardian ad litem.
8. Are guardians appointed in all cases involving children? Show answer
Not all cases involving children require a guardian ad litem. Cases under the Child and Family Services and Child Protection Act must have a guardian ad litem for any child. In family law cases (such as divorce, separation, custody and parental rights and responsibility cases) the court may or may not appoint a guardian ad litem. In cases under the Probate Code (such as appointing a conservator or guardian) the court may or may not appoint a guardian ad litem for the child.
9. What does the court consider when deciding to appoint a guardian ad litem? Show answer
If the case is brought under the Child and Family Services and Child Protection Act, the court must appoint a guardian ad litem for the child.
If the case is brought under the family law statutes or the Probate Code, the court will determine if there is reason for special concern as to the welfare of the child. The court will also consider
- the wishes of the parties;
- the age of the child;
- the nature of the proceedings, including the behavior of the parties;
- the financial resources of the parties;
- the extent to which a guardian ad litem may assist in providing information concerning the best interests of the child;
- whether the family has experienced a history of domestic abuse;
- the abuse of the child by one of the parties; and
- other factors the court determines are relevant.
10. What does “best interests of the child mean?” Show answer
“Best interests of the child” is defined by statute. It means “an outcome that serves or otherwise furthers the health, safety, well-being, education and growth of the child.” Consideration is given to
- the age of the child;
- the relationship of the child with the child’s parents and any other persons who may significantly affect the child’s welfare;
- the preference of the child, if the child is old enough to express a meaningful preference;
- the duration and adequacy of the child’s current living arrangements and the desirability of maintaining continuity;
- the stability of any proposed living arrangements for the child;
- the motivation of the parties involved and their capacities to give the child love, affection and guidance;
- the child’s adjustment to the child’s present home, school and community;
- the capacity of each parent to allow and encourage frequent and continuing contact between the child and the other parent, including physical access;
- the capacity of each parent to cooperate or to learn to cooperate in child care;
- methods for assisting parental cooperation and resolving disputes and each parent’s willingness to use those methods;
- the effect on the child if one parent has sole authority over the child’s upbringing;
- the existence of domestic abuse between the parents, in the past or currently, and how that abuse affects the child emotionally, and the child’s safety;
- the existence of any history of child abuse by a parent; and
- other factors having a reasonable bearing on the physical and psychological well-being of the child.
11. How does the guardian ad litem know what should be done to determine “the best interests of the child?” Show answer
Statutes and the court instruct the guardian ad litem about what should be done to determine the best interests of the child. The guardian ad litem may not perform any work beyond that specified in statutes and the court’s order. If the guardian ad litem believes more work is necessary to determine the best interests of the child, the guardian or one of the parties will file a motion with the court.
12. What terms or provisions are in an Order of Appointment of a Guardian ad Litem? Show answer
In family law/domestic relations and probate matters, the court will choose one of three types of orders: A Limited Purpose Appointment Order, a Standard Appointment Order, and an Expanded Appointment Order. Each will describe the duties of the guardian ad litem; the length of the appointment; the amount of time the guardian ad litem can devote to the case; the fees which will be paid and when and how the fees must be paid. A Standard Appointment Order is available on the court’s web site.
An Expanded Appointment Order will specify additional duties of the guardian ad litem. Additional duties may include interviewing teachers and other people who have knowledge of the family or the child; reviewing mental health, medical and school records of the child and of the parents; arranging for and obtaining medical, educational or mental evaluations as determined by the court; arranging for and obtaining medical, educational or mental evaluations of the parents as determined by the court; obtaining counseling for the child; hiring an attorney to represent the guardian ad litem; subpoenaing witness and documents; serving as a contact person between the parents and the child; and other duties the court determines necessary.
In child protection cases, the court order, details the work that must be done by the guardian ad litem. The guardian ad litem must be given access to all reports and records relevant to the case. The investigation will include, when possible and appropriate,
- a review of mental health records and materials;
- a review of medical records;
- a review of school records and other pertinent materials;
- interviews with the child with or without other persons present; and
- interviews with parents, foster parents, teachers, caseworkers and other persons who have been involved in caring for or treating the child.
There are specific directions regarding the guardian ad litem’s face-to-face contact with the child and the frequency of contact with the child in the child’s home. The order requires the guardian ad litem to write and submit certain reports. The guardian ad litem must participate in court proceedings, and is given power to subpoena witnesses and to question those witnesses at court.
If there are new developments or significant changes in the child’s circumstances while the proceedings are pending, the guardian ad litem can file pleadings with the court to seek authority for additional work. As with the original order, the guardian ad litem has no authority to perform any tasks beyond those specified in the court’s order.
13. How are the fees of the guardian ad litem paid? Show answer
In a child protective matter, the guardian ad litem will be paid by the court,
In other types of matters, the appointment order will state who is responsible for payment of the guardian ad litem’s fees.
14. What are the standards of conduct which the guardian ad litem must follow? Show answer
The guardian ad litem must maintain independent representation of the best interest of the child. The guardian ad litem should develop an understanding of the case through a review of all of the pleadings and notices. In all child protection cases, and when ordered in family and probate matters, the guardian ad litem will participate in depositions, negotiations, and pre-hearing discovery proceedings that are relevant to the child’s best interests.
Unless excused by the court, the guardian ad litem will participate in all case management, pretrial or other conferences and hearings.
The guardian ad litem must not cause case delays and will attempt to reduce delays.
The guardian ad litem must use effective communication techniques. When appropriate, the guardian ad litem will explain the court process to the child and will explain the guardian ad litem’s own role. The guardian ad litem will advocate for clear orders.
The guardian ad litem is a “mandated reporter,” requiring the guardian ad litem to make an immediate report to the Department of Health and Human Services if the guardian ad litem has reasonable cause to suspect that a child has been or is likely to be abused or neglected.
15. Can a guardian ad litem be removed from a case, and if so, how is the guardian ad litem removed? Show answer
A guardian ad litem will be removed from the case if the court determines it appropriate to do so. A party who wants the guardian removed must file a written motion which states the basis for the requested removal. A copy of the motion must be given to all other parties in the case and to the guardian ad litem. The guardian ad litem and the other parties may respond to the motion, in writing. The court can decide the motion without a hearing, or, if the party filing the motion in writing requests a hearing, the court will convene a hearing. The court will remove a guardian ad litem who has been suspended or removed from the roster of guardians ad litem. Otherwise, removal of a guardian ad litem from a case is within the discretion of the court. The court’s decision cannot be appealed until after the court makes its decision concerning the best interests of the child.
16. Are guardians ad litem subject to oversight and discipline? Show answer
Yes. The Supreme Judicial Court has created the Guardian ad Litem Review Board. The Review Board acts independently to regulate guardians ad litem. The Review Board enforces guardian ad litem compliance with statutes and the court’s rules.
17. Who sits on the Review Board? Show answer
There are 12 members of the Review Board. Eight Board members are chosen from the guardian ad litem roster or from the Maine State Bar Association Family Law Section. Four Board members are public members who are not guardians ad litem. The Governor, the Speaker of the House, and the President of the Senate have input into the selection of the public members.
18. What conduct is grounds for discipline of a guardian ad litem? Show answer
It is misconduct and grounds for discipline for a guardian ad litem to:
- Violate or attempt to violate the rules or statutes governing guardians ad litem or an appointment order issued pursuant to them, or to knowingly assist or induce another to do so, or do so through the acts of another;
- Engage in conduct that violates the applicable rules of conduct for guardians ad litem in another jurisdiction;
- Commit any criminal or unlawful act that reflects adversely on the guardian ad litem’s honesty, trustworthiness, or fitness as a guardian ad litem;
- Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
- Have allegations of abuse or neglect against him or her substantiated by the Maine Department of Health and Human Services;
- Fail to maintain compliance with the requirements for placement on the roster of guardians ad litem;
- In the performance of guardian ad litem duties, by words or conduct, manifest bias or prejudice based upon race, color, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status;
- Willfully violate an order imposing discipline under the guardian ad litem rules, or to willfully fail to comply with a subpoena validly issued under the rules; or knowingly fail to respond to a lawful demand from a disciplinary authority, except that the guardian ad litem is not required to disclosure information otherwise protected by applicable rules relating to confidentiality; or
- Fail to comply with the conflict of interest or mandatory disclosure requirements of in the guardian ad litem rules.
19. Who can file a complaint about a guardian ad litem? Show answer
Any party to family law, probate, or child protection case may file a written complaint alleging misconduct by the guardian ad litem. Complaints may also be filed by a justice, judge or magistrate of the court.
20. When can complaints be filed? Show answer
Complaints must be filed within six years after the alleged misconduct occurred.
21. Where and how are complaints filed? Show answer
A complaint form may be downloaded. Once complete, the complaint is sent to the Guardian ad Litem Review Board at the Overseers of the Bar, P.O. Box 527, Augusta, ME 04332-0527. If you need assistance submitting a complaint, contact the Intake Office by phone at (207) 623-1121 or by e-mail at Centralintake@mebaroverseers.org.
22. What happens once a complaint is made? Show answer
Board Counsel will determine if there is jurisdiction and if the allegations in the complaint could constitute misconduct. If the complaint does not suggest misconduct (see FAQ 17, above) the complaint will be dismissed. Board Counsel’s decision to dismiss can be reviewed by a public member of the Review Board, who can approve or reverse the dismissal.
If Board Counsel determines there is jurisdiction and possible misconduct, Board Counsel will conduct an investigation.
23. How does the investigation proceed? Show answer
Board Counsel will notify the guardian ad litem that a complaint has been made. The notice will provide the guardian ad litem with an overview of the complaint and ask the guardian for a response. The response will be shared with the person who made the complaint. Board Counsel will evaluate all information to determine whether there is misconduct.
When the investigation is completed, Board Counsel will issue a confidential written recommendation to the Review Board. Board Counsel will include the reasons for a recommendation to
- Dismiss the complaint;
- Suspend action on the complaint for further investigation or alternative discipline;
- Require counseling or specific training, or similar action, under an Approved Discipline Program contract;
- Assign the complaint to a Review Panel to determine if formal charges are warranted
24. How do formal charges get resolved? Show answer
If formal charges are recommended, a disciplinary hearing will be scheduled before a different Review Board Panel that did not review the initial complaint. A three-person Review Board Panel conducts the hearing. The hearing is open to the public unless the hearing panel determines it is necessary to close all or part to protect the person who filed the complaint, a witness, a child or other person. The full hearing may include evidence such as witness testimony and items submitted in writing. Board Counsel is responsible for proving misconduct by the guardian ad litem by a preponderance of the evidence.
The Review Board Panel will consider all the evidence and discuss the case in private. The Panel will issue a written report within 30 days after the hearing. The guardian ad litem and the person who filed the complaint will receive a copy of the report.
The report will contain findings of fact, conclusions of law, and the Review Board Panel’s decision on the appropriate outcome, which can be
- Dismissal, or
- Reprimand, or
- Removal from the Roster
25. Can the decision be appealed? Show answer
Yes. The appeal process follows Rule 80C of the Maine Rules of Civil Procedure.