During a divorce, child custody matter, or abuse, neglect, and dependency case in Ohio, the primary focus of the case tends to be on the legal rights of the parents during the proceedings. However, during these cases there are often minor children that are equally affected by the legal proceedings. During a divorce involving children or a child custody matter, the change of parenting time often affects the children as the parenting time schedule that they are used to gets changed with little input from the children.
Most of the time in divorces, child custody matters, or abuse, neglect, dependency cases a Guardian ad Litem is appointed to represent the best interests of the children. A Guardian’s job is not to represent the children’s legal interests or their desires, but rather to conduct an independent investigation for the Court and report back to the Court on what the Guardian believes will be in the children’s best interests regarding custody and a parenting time schedule. So, what happens if the Guardian and the child or children disagree on what is in the child/children’s best interests?
Ohio Law on Guardians ad Litem
Under Ohio Rules of Superintendence, rule 48(D)(8), “When a guardian ad litem determines that a conflict exists between the child’s best interest and the child’s wishes, the guardian ad litem shall, at the earliest practical time, request in writing that the court promptly resolve the conflict by entering appropriate orders.”
The Ohio Rules of Juvenile Procedure, Rule 4(C)(1) states “When the guardian ad litem is an attorney admitted to practice in this state, the guardian may also serve as counsel to the ward providing no conflict between the roles exist.” Further, section (C)(2) states “If a person is serving as guardian ad litem and as attorney for the ward and either that person or the court finds a conflict between the responsibilities of the role of attorney and that of guardian ad litem, the court shall appoint another person as guardian ad litem for the ward.”
Typically, it is not common practice for a Court to appoint an attorney in a dual capacity as both Guardian and attorney for child. Instead, the Court usually only appoints an attorney as the Guardian and if a conflict arises between the Guardian and the Child, the Guardian will notify the Court of the conflict and the Court will typically appoint an attorney to represent the child’s legal interests and act as the child’s personal attorney. The question then becomes, who chooses the child’s attorney and is there a cost for the child to have an attorney?
Generally, once a conflict between a Guardian ad Litem and a child arises, the matter is put to the Magistrate/Judge to make the decision of who will be the child’s attorney and how the child’s attorney fees will be apportioned. If the parties in a divorce or child custody matter can agree to an attorney for the child, the Magistrate or Judge may be willing to entertain that idea. However, the more common method is for the Magistrate or Judge to determine on their own who will represent the child.
The child’s attorney’s fees can be apportioned to each party in several different ways depending on how the Magistrate/Judge decides. The fees may be apportioned to each party equally, or they may be apportioned depending on each party’s income just as the Guardian ad Litem fees are. In an Abuse, Neglect, Dependency case, the Magistrate or Judge often will choose the attorney for the child from a list of predetermined attorneys who are willing to accept Court Appointed cases and have the child’s attorney fees financed by the State.
It is not common for an attorney to be appointed to represent a child in a divorce or child custody matter due to the additional financial burden it places on the parties, but it is not unheard of. During cases involving abuse, neglect, and dependency matters, it is much more common due to the State picking up the financial tab and the fact that children who are removed from their homes often desire to be returned home, whether it is in their best interest or not.
Guardians ad Litem Versus Attorneys for the Child
The easiest way to explain the different roles that a Guardian ad Litem and attorney for a child play is that the Guardian needs to look out for the child’s best interests, whereas the child’s attorney needs to represent the child’s wishes and legal interests.
To put it simply and use a hypothetical, easy example, if a child says to his Guardian that he would like cookies before bed, the Guardian will report to the Court that the child would like cookies before bed, but that the Guardian feels that cookies before bed are not in the child’s best interest because the child needs to limit their sugar intake and the sugar in cookies can also lead to cavities. Whereas, if the child states to his attorney that he would like cookies before bed, the attorney must then state to the Court that the child would like cookies before bed and that the cookies before bed are necessary as they will contribute to the child’s overall happiness and well-being.
Whether a child is appointed an attorney or not in a divorce, child custody matter, or an Abuse, Neglect, and Dependency case, what matters is that the Courts are making great strides to recognize that the children of these cases do have opinions and that their opinions matter.
Haley Holmberg is a family lawyer who has been practicing since 2018. She is a practicing member of the Ohio bar. Attorney Holmberg is an associate at The Law Offices of William L. Geary, located in Columbus, Ohio. The Office practices solely Family and Juvenile Law.
To schedule a consultation about your case, call us at (614) 289-1227 or contact our office online today.