Monday, March 7, 2011

“The Best Interests of the Children” and the Guardian Ad Litem

Today's blog post is scribed by Jeremy Abernathy.


This oft used phrase refers to the standard the Court must apply in making decisions for cases involving children.  The General Assembly intentionally left the standard vague because there are a sundry of factors that weigh into what is best for a particular child.  Each case has separate facts and circumstances that add a degree of complexity to this standard, and uniqueness as to how the standard is applied.  The Judge does not have the advantage of having a “cookie cutter” formula in making decisions affecting the health and welfare of the child.  

The Judge has to sift through the divorcing parties’ warring viewpoints of case resolution relative to child custodial issues.  Further, the Judge must decipher which allegations are genuine or without merit.  The attorneys are often wrapped up in zealously arguing their clients’ perspective of what is in the children’s best interests.  Everyone’s job is tough, and unfortunately, what can get lost are the children.

The Court, however, has assistance available.  The Court, under Uniform Superior Court Rule 24.9 can appoint a  guardian ad litem.  The guardian ad litem serves as an “extension of the Court’s eyes and ears.”  The guardian can visit the home of the children; interview the teachers of the children; interview a party’s new spouse or mate.  There are limitless ways in which the guardian can assist the trier of fact, so therefore, guardians profoundly affect the case.

Consequently, it is important to be courteous and respectful to the guardian.  The tried and true old adage about kindness applies here: “you catch more bees with honey than vinegar.”  An additional adage equally applies:  “kindness is the first step to cruelty.”  The balance must be struck between respect for the guardian and also, challenging the guardian to be accountable and thorough in their very important function.

In conclusion, there are many factors that weigh into what is in the best interests of a child.  The factors vary from case to case.  A guardian ad litem assists the Court in reaching its decision.  Therefore, guardian should be treated with high regard, but also challenged in a cordial manner to provide the Court a complete picture.

Jeremy Abernathy

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