RULE 4. Court Appointment and Duties
(a) Appointment to a Case. An individual shall act in a case as a guardian ad litem only as authorized by
(1) A limited purpose appointment order issued pursuant to Rule 4(b)(4)(D)(i), 4 M.R.S. § 1555, and either 19-A M.R.S. § 1507 or 18-C M.R.S. § 1-111;
(2) A standard appointment order issued pursuant to Rule 4(b)(4)(D)(ii), 4 M.R.S. § 1555, and either 19-A M.R.S. § 1507 or 18-C M.R.S. § 1-111;
(3) An expanded appointment order issued pursuant to Rule 4(b)(4)(D)(iii), 4 M.R.S. § 1555, and either 19-A M.R.S. § 1507 or 18-C M.R.S. § 1-111; or
(4) An appointment order issued pursuant to Rule 4(c), 4 M.R.S. § 1556, and 22 M.R.S. § 4005.
(b) Title 18-C and 19-A Appointments.
(1) Consideration of Appointment. A party may file a motion for the court to appoint a guardian ad litem in proceedings to determine parental rights and responsibilities and guardianship of a minor pursuant to Title 18-C and in contested proceedings pursuant to Title 19-A, section 904, 1653, or 1803 in which a minor child is involved. The court may also appoint a guardian ad litem on its own motion after notice to the parties and an opportunity to be heard. The court's adjudication of a motion for appointment of a guardian ad litem shall be governed by 18-C M.R.S. § 1-111 or 19-A M.R.S. § 1507.
(2) Timing of Motion for Appointment. In a Title 19-A proceeding, any motion or request to the court for appointment of a guardian ad litem shall be filed no later than the conference with the court following the first scheduled mediation session or, if mediation is waived, 60 days after the first conference with the court. A motion or request for appointment of a guardian ad litem may be considered at a later time only if the court finds that
(A) There is good cause for the late motion;
(B) The reasons for the late motion could not have been anticipated at a point when a timely motion could have been filed; and
(C) The appointment will not unreasonably delay resolution of the matter or harm the best interest of the child in achieving clarity in parental rights and responsibilities for the child.
(3) Factors to Consider. In determining whether an appointment must be made, the court shall consider
(A) The wishes of the parties;
(B) The age of the child;
(C) The nature of the proceeding, including the contentiousness of the hearing;
(D) The financial resources of the parties;
(E) The extent to which a guardian ad litem may assist in providing information concerning the best interest of the child;
(F) Whether the family has experienced a history of domestic abuse;
(G) Alleged abuse of the child by one of the parties; and
(H) Other factors the court determines relevant.
(4) Contents of Appointment Order. The appointment shall be by court order, which shall be a limited purpose appointment order, a standard appointment order, or an expanded appointment order. The appointment order, which must be written on the court-approved form, shall provide information as follows:
(A) The court shall specify the guardian ad litems length of appointment; duties, including the filing of a written report pursuant to 4 M.R.S. § 1555(6) and either 19-A M.R.S. § 1507(5) or 18-C M.R.S. § 1-111(5); and fee arrangements, including hourly rates, timing of payments to be made by the parties, and the maximum amount of fees that may be charged for the case without further order of the court. The guardian ad litem may not perform and shall not be expected to perform any duties beyond those specified in the appointment order, unless subsequently ordered to do so by the court.
(B) If, in order to perform any specified duties, the guardian ad litem needs information concerning the child or parents, the court may order the parents to sign an authorization form allowing the release of the necessary information. The court order may specify that the guardian ad litem must be allowed access to the child by caretakers of the child, whether the caretakers are individuals, authorized agencies, or childcare providers.
(C) In Title 18-C proceedings, the court shall specify who is responsible for payment of the guardian ad litems fees. In Title 19-A proceedings, the order shall specify that payment for the services of the guardian ad litem is the responsibility of the parties pursuant to 19-A M.R.S. § 1507(7), with the terms of payment specified in the order. In determining the responsibility for payment, the court shall consider
(i) The income and earnings of the parties;
(ii) The marital and nonmarital assets of the parties;
(iii) The division of property made or anticipated as part of the final divorce or separation;
(iv) Which party requested appointment of a guardian ad litem; and
(v) Other factors deemed relevant by the court, which shall be stated with specificity in the appointment order.
When the parties do not agree to the appointment of the guardian ad litem or the fee arrangements for payment of the guardian ad litem, the court shall state in the appointment order its findings, based on the criteria set out in this Rule, supporting the appointment of the guardian ad litem and the fee payment order. If a guardian ad litem seeks to obtain a judgment for fees based on the guardian ad litems services and expenses, the guardian ad litem shall do so as part of the action where the guardian ad litem has been appointed. Any action to obtain satisfaction or enforcement of a resulting judgment shall proceed in a separate proceeding under Title 14.
Collection of payment of fees, if a collection action is necessary, shall proceed pursuant to Title 14 and shall not be pursued in the action in which the guardian ad litem is appointed.
(D) The court may issue one of the following Appointment Orders:
(i) Limited Purpose Appointment Order. The court may appoint a guardian ad litem for a specified, limited purpose or purposes. The order must specify the duties that the guardian ad litem shall perform, the duration of the appointment, the maximum number of hours that may be spent on the case by the guardian ad litem, the hourly fee rate, and the maximum fee that may be charged by the guardian ad litem. The order shall further specify when the fee shall be paid and by whom. If any court-ordered payment is not paid as ordered, the guardian ad litem shall notify the court, and, after the parties receive notice and have an opportunity to be heard, the court may vacate the appointment order or take such other action it deems appropriate.
(ii) Standard Appointment Order. The standard appointment order shall list the duties of the guardian ad litem to be performed pursuant to the order.
(a) Those duties, in each standard appointment order, shall be:
(1) Observing the child or children in the home or homes where the child or children regularly reside, and for each child over the age of 3, conducting a face-to-face interview with the child;
(2) Interviewing each parent and each other adult who resides in the home or homes where the child or children regularly reside; and
(3) Completing and filing a written report of investigation, findings, and recommendations as ordered by the court when the case is to proceed to a contested hearing, with copies of the report to each party and the court, within the time specified in the appointment order.
(b) For the performance of these duties, the appointment order shall specify a maximum fee and direct that a specified sum be paid within a set time before the guardian ad litem commences the investigation and any interim payments, with the remainder to be paid within 14 days after the filing of the written report. If any court ordered payment is not made, the guardian ad litem shall notify the court, and after the parties receive notice and have an opportunity to be heard, the court may vacate the appointment order or take such other action it deems appropriate under the circumstances.
(ii) Expanded Appointment Order. The original appointment order or an amended appointment order may specify any additional duties of the guardian ad litem that shall be individually approved by the court.
(a) The additional duties may include
(1) Interviewing teachers and other people who have knowledge of the child or family;
(2) Reviewing mental health, medical and school records of the child;
(3) Reviewing mental health and medical records of the parents;
(4) Arranging for and obtaining medical, educational, or mental evaluations of the child within a time and at a cost to be stated in the order;
(v) Arranging for and obtaining medical, educational, or mental evaluations of the parents within a time and at a cost to be stated in the order;
(vi) Procuring counseling for the child;
(vii) Retaining an attorney to represent the guardian ad litem in the pending proceeding, with approval of the court;
(viii) Subpoenaing witnesses and documents, and examining and cross-examining witnesses;
(ix) Serving as a contact person between the parents and the child; or
(x) Other duties that the court determines necessary, including, but not limited to, filing pleadings and testifying in court.
(b) If the court orders any additional duties to be performed pursuant to the original appointment order or an amendment of that order, the court may amend any provision of the prior order that is affected by the newest order.
(c) For the performance of these duties, the appointment order shall specify a maximum fee, direct that a specified sum be paid within a set time before the guardian ad litem commences the investigation, direct the payment of any interim payments, and require that the remainder be paid within 14 days after the filing of the written report. If any court-ordered payment is not paid, the guardian ad litem shall notify the court, and after the parties receive notice and have an opportunity to be heard, the court may vacate the appointment order or take such other action it deems appropriate under the circumstances.
(5) Best Interest of the child. In performance of duties in Title 18-C and Title 19-A proceedings, the guardian ad litem shall use the standard of the best interest of the child as stated in 19-A M.R.S. $sect; 1653(3).
(6) Wishes of the child. The guardian ad litem shall make the wishes of the child known to the court if the child has expressed them, regardless of the recommendation of the guardian ad litem.
(7) Written report. A guardian ad litem shall provide a copy of any required final written report to the parties and the court at least 14 days in advance of the final hearing. The report is admissible as evidence and subject to cross examination and rebuttal, whether or not objected to by a party.
(8) Agent of the Court. A person serving as a guardian ad litem pursuant to 4 M.R.S. § 1555 and either 18-C M.R.S. § 1-111 or 19-A M.R.S. § 1507 acts as the courts agent and is entitled to quasi-judicial immunity for acts performed within the scope of the guardian ad litems duties.
(c) Title 22 Appointment Order. Guardian ad litem appointment orders entered pursuant to 4 M.R.S. § 1556 and 22 M.R.S. § 4005 shall be issued on a court-approved form and shall specify the terms and conditions of the guardian ad litems appointment as stated in Title 22 and in these Rules. The guardian ad litem has no authority to perform and shall not be expected to perform any duties beyond those specified in the appointment order, unless subsequently ordered to do so by the court.
(1) Meet and Interview Child. The guardian ad litem shall be provided access to the child by any agency or person. Irrespective of the childs age, the guardian ad litem should visit with the child as soon as possible after appointment, consistent with statutory requirements or the order of appointment, or both. Unless otherwise specified by the court, the initial meeting must take place within 7 days after appointment. The guardian ad litem should meet with the child prior to court hearings and when apprised of emergencies or significant events that are likely to have an impact on the child. Unless otherwise specified by the court, the guardian ad litem must meet with the child at least quarterly.
(2) Investigation. In pursuit of the best interest of the child, the guardian ad litem should be given access to all reports and records relevant to the case and investigate to ascertain the facts. The investigation must include, when possible and appropriate, the following:
(A) Review of relevant mental health records and materials;
(B) Review of relevant medical records;
(C) Review of relevant school records and other pertinent materials;
(D) Interviews with the child with or without other persons present; and
(E) Interviews with parents, foster parents, teachers, caseworkers, and other persons who have been involved in caring for or treating the child.
(3) Court filings. The guardian ad litem should file such reports, motions, responses, or objections as necessary and appropriate to the stage of the case to assist the court in identifying the best interest of the child and provide copies to all parties of record. In the event any new developments or significant changes in the childs circumstances occur during the pendency of the court process, the guardian ad litem may file appropriate pleadings. Relief requested may include, but is not limited to, the following:
(A) A mental or physical examination of a party or the child;
(B) A parenting, custody or visitation evaluation;
(C) An increase, decrease, or termination of contact, or the imposition of conditions on contact;
(D) Restraining or enjoining a change of placement;
(E) Contempt for noncompliance with a court order;
(F) Termination of parental rights;
(G) Child support;
(H) A protective order concerning the childs privileged communications or tangible or intangible property;
(I) A request for services for child or family; and
(J) Dismissal of petitions or motions.
(4) Participation in Hearing. The guardian ad litem shall appear at all child protection proceedings to represent the childs best interest, unless previously excused by order of the court, and at other proceedings as ordered by the court. The guardian ad litem may present evidence and ensure that, where appropriate, witnesses are called and examined, including, but not limited to, foster parents and psychiatric, psychological, medical, or other expert witnesses. If the guardian ad litem testifies, the guardian ad litem shall be duly sworn as a witness and be subject to cross-examination.
(5) Protection of Child as Witness. The guardian ad litem shall advocate for the interests of the child when the child is called to testify as a witness in any judicial proceeding relating to the case in which the guardian ad litem has been appointed. The guardian ad litem may advocate for special procedures, including, but not limited to, special procedures to protect the child witness from unnecessary psychological harm resulting from the childs testimony.
(6) Recommendations to the Court. The guardian ad litem may make recommendations to the court to obtain access to appropriate services and entitlements, to protect the childs interests, and to implement a service plan.
For interim or preliminary protection hearings, the guardian ad litem should, except as otherwise required, appear in court and offer recommendations subject to questions by the court and parties or counsel. The submission of a report by the guardian ad litem and the admissibility of any such report in evidence shall be as provided by statute. The guardian ad litem may present evidence at court hearings.
(7) Development of Services. The guardian ad litem may advocate for appropriate services, including by motion filed with the court, to obtain access to appropriate services and entitlements, to protect the childs interests, and to implement a service plan. These services may include, but are not limited to, the following:
(A) Family preservation or reunification services;
(B) Sibling and family visitation;
(C) Child support;
(D) Domestic violence prevention, intervention, and treatment;
(E) Medical and mental health care, including residential/inpatient and outpatient psychiatric treatment if necessary and appropriate;
(F) Drug and alcohol treatment;
(G) Parenting education;
(H) Semi-independent and independent living services;
(I) Foster care, including therapeutic foster or group home care if necessary and appropriate;
(J) Petition for termination of parental rights;
(K) Adoption services;
(M) Recreational or social services;
(N) Housing; and
(O) Referrals for supplemental security income (SSI) or special education and related services, if necessary and appropriate.
(8) Best interests of the child. In performing the duties specified in the appointment order, the guardian ad litem shall use the standard of the best interest of the child.
(9) Additional Powers. A guardian ad litem may perform only those duties specified by court order. In some cases, however, the court may order that guardian ad litems investigation include the following activities:
(A) Reviewing the court files of siblings and other family members, and other case-related records of involved social service agencies and other service providers;
(B) Contacting lawyers for other parties and other guardians ad litem in the case and in other relevant cases for background information;
(C) Obtaining necessary authorizations for the release of information;
(D) Interviewing individuals involved with the child, including school personnel, child welfare case workers, foster parents, and other caretakers, neighbors, relatives, coaches, clergy, mental health professionals, physicians, law enforcement officers, and potential witnesses;
(E) Reviewing relevant photographs, video or audio recordings, and other evidence;
(F) Attending and participating in, where appropriate, treatment, placement, administrative hearings, other proceedings involving legal issues, and school case conferences concerning the child as needed;
(G) Arranging for the assessment of any physical, sexual, developmental, and/or emotional risks to or abuse of the child by utilizing risk assessment tools; evaluations, assessments, and reports; medical records; observation; and interviews with appropriate persons;
(H) Communicating effectively with other professionals involved in the assessment or treatment of the child and/or parties to a childs case, to include the following:
(i) Identifying the need for assessments related to domestic violence; abuse of a child; chemical dependency; mental health; and/or special developmental, educational, or medical needs of a child, and making referrals to appropriate specialists or treatment programs;
(ii) Requesting educational testing of, or an individualized education plan for, a child;
(iii) Understanding measurement tools, risk assessments, and reports related to domestic violence, abuse of a child, chemical dependence, mental health, and/or the special needs of a child; and
(iv) Understanding scientific data related to paternity and/or medical needs of a child; disclosing information to other professionals, when it is in the childs best interest to do so, in order that they can adequately perform their functions; and reviewing tentative conclusions or recommendations with them in order to test their validity or appropriateness;
(I) Participating in the development and negotiation, including mediation, of any plans or orders that affect the best interest of the child; and
(J) Monitoring implementation of service plans and court orders, until the termination or expiration of the guardian ad litems appointment, to determine whether services ordered by the court are being provided effectively and in a timely manner.
(10) Appointment of Counsel for Guardian ad litem. A guardian ad litem may petition the court to appoint a lawyer to represent the guardian ad litem when, in the judgment of the guardian ad litem, such appointment is necessary to protect the legitimacy of the guardian ad litems role.
Advisory Note - September 2019
Rule 4 has been amended so that any reference to the Probate Code reflects the Legislature's enactment of a new Code, effective September 1, 2019. See P.L. 2019, ch. 417 § B-14; P.L. 2017, ch. 402 §§ A-1, A-2, F-1.