Connecticut Judicial Branch Law Libraries

Representing Minors

in Connecticut

A Guide to Resources in the Law Library

GUARDIAN AD LITEM (GAL)

· “The term Guardian ad litem (GAL)shall mean a person appointed by the court during any proceeding in which a minor child, undetermined or unborn or class of such person, or a person whose identity or address is unknown, or an incompetent person is a party, to represent and protect the interests of such parties.” Connecticut Probate Practice Book, Rule 1.1.09.

· “A lawyer appointed as ‘guardian ad litem’ for a child is an officer of the court appointed to protect the child’s interests without being bound by the child’s expressed preferences.” American Bar Association Standards of Practice for Lawyers who Represent Children in Abuse and Neglect Cases, Standards for the Child’s Attorney A-2 (American Bar Association, 1996), reprinted in Jean Koh Peters, Representing Children in Child Protective Proceedings: Ethical and Practical Dimensions 843 (2d ed., 2001).

ATTORNEY FOR THE CHILD (AMC)

· “Typically, the child’s attorney is an advocate for the child, while the guardian ad litem is the representative of the child’s best interests.” Newman v. Newman, 235 Conn. 82, 96, 663 A.2d 980 (1995)

· “... the attorney for the child is just that, an attorney arguing on behalf of his or her client, based on the evidence in the case and the applicable law.” Ireland v. Ireland, 246 Conn. 413, 438, 717 A.2d 986 (1998)

· “The term ‘child’s attorney’ means a lawyer who provides legal services for a child and who owes the same duties of undivided loyalty, confidentiality, and competent representation to the child as is due an adult client.” American Bar Association Standards of Practice for Lawyers who Represent Children in Abuse and Neglect Cases, Standards for the Child’s Attorney A-1 (American Bar Association, 1996), reprinted in Jean Koh Peters, Representing Children in Child Protective Proceedings: Ethical and Practical Dimensions 843 (2d ed., 2001).

· “The primary role of any counsel for the child including the counsel who also serves as guardian ad litem shall be to advocate for the child in accordance with the Rules of Professional Conduct. When a conflict arises between the child’s wishes or position and that which counsel for the child believes the best interest of the child, the court shall appoint another person as guardian ad litem for the child. The guardian ad litem shall speack on behalf of the best interest of the child and is not required to be an attorney-at-law but shall be knowledgeable about the needs and protection of children.” Conn. Gen. Stat. § 46b-129a(2)

NEXT FRIEND

· “There are, however, ‘certain exceptional circumstances’; Cottrell v. Connecticut Bank & Trust Co., [175 Conn. 257,] supra, 263; when a child ‘may properly sue by next friend, notwithstanding the existence of such guardian . . . .” Orsi v. Senatore, 230 Conn. 459, 466-467, 645 A.2d 986 (1994).

Sections in this chapter:

§ 1. Guardian Ad Litem in Connecticut (GAL)

§ 2. Attorney for the minor Child (AMC)

§ 3. Removal of a Guardian Ad Litem or Attorney for the minor child

§ 4. Next Friend in Connecticut

Tables in this chapter:

Table 1 Public Act No. 01-148 sec. 1

Table 2 Guardian ad litem in Conservatorship Proceeding

Table 3 Motion for appointment of Guardian Ad Litem

Table 4 Carrubba v. Moskowitz

* Compiler acknowledges the contribution made by Barbara Bradley.

WEB PAGES:

http://www.kidscounsel.org/legalresources_QLR.htm

Section 1

Guardian Ad Litem

in Connecticut

A Guide to Resources in the Law Library

SCOPE:

Bibliographic resources relating to the role of the guardian ad litem.

DEFINITION:

· “The term Guardian ad litem shall mean a person appointed by the court during any proceeding in which a minor child, undetermined or unborn or class of such person, a person whose identity or address is unknown, or an incompetent person is a party, to represent and protect the interests of such parties.” Connecticut Probate Practice Book Rule 1.1.09.

· “The record does not disclose why independent counsel was not sought in this case. For the future, we suggest that, in the absence of strong countervailing considerations such as physical urgency or financial stringency, the better course is to appoint independent counsel whenever the issue of child custody is seriously contested.” Yontef v. Yontef, 185 Conn. 275, 2 84, 440 A.2d 899 (1981).

· “The PRIMARY ROLE of any counsel for the child including the counsel who also serves as guardian ad litem, shall be to advocate for the child in accordance with the Rules of Professional Conduct. When a conflict arises between the child's wishes or position and that which counsel for the child believes is in the best interest of the child, the court shall appoint another person as guardian ad litem for the child. The guardian ad litem shall speak on behalf of the best interest of the child and is not required to be an attorney-at-law but shall be knowledgeable about the needs and protection of children. In the event that a separate guardian ad litem is appointed, the person previously serving as both counsel and guardian ad litem for the child shall continue to serve as counsel for the child and a different person shall be appointed as guardian ad litem, unless the court for good cause also appoints a different person as counsel for the child. No person who has served as both counsel and guardian ad litem for a child shall thereafter serve solely as the child's guardian ad litem.” Conn. Gen. Stats. § 46b-129a(2) [Emphasis added].

· “In any criminal proceeding involving an abused or neglected minor child, a guardian ad litem shall be appointed.” Conn. Practice Book § 44-20(a) (2006 ed.).

STATUTES:

Conn. Gen. Stat. (2007)

· Chapter 801b. Probate court procedure

§ 45a-132. Appointment of guardian ad litem for minors and incompetent, undetermined and unborn persons.

· Chapter 802h. Protected persons and their property

§ 45a-620. Appointment of counsel. Appointment of Guardian ad litem to speak on behalf of best interests of minor

§ 45a-621. Appointment of guardian ad litem.

“The Court of Probate shall appoint a guardian ad litem to make any application under sections 45a-603 to 45a-622, inclusive, to represent or appear on behalf of any parent who is less than eighteen years of age or incompetent.”

· Chapter 803. Termination of parental rights and adoption

§ 45a-708. Guardian ad litem for minor or incompetent parent.

(a) When, with respect to any petition for termination of parental rights ... it appears that either parent of the child is a minor or incompetent, the court shall appoint a guardian ad litem for such parent.”

(b)“ If the conservator does not appear in court, or if the adverse party has no conservator, the court shall appoint a guardian ad litem for the adverse party.”

· Chapter 815j. Dissolution of marriage, legal separation and annulment

§ 46b-47. Complaint for dissolution of marriage on ground of confinement for mental illness; procedure

§ 46b-54. Counsel for minor children. Duties.

· Chapter 815t. Juvenile matters

§ 46b-129a. Examination by physician. Appointment of counsel and guardian ad litem.

STANDARDS:

· Commission on Child Protection, State of Connecticut. Connecticut Standards of Practice for Attorneys & Guardians Ad Litem Representing Children in Child Protection Cases, v.68 Conn. Law Journal 3E (January 30, 2007).

I. Definitions

II. Connecticut framework for appointment of attorney and GAL’s for children in Child Protection matters basic obligations of parents’ attorneys

III. Summary of the general authority and duties of the attorney/GAL and duties of the GAL

IV. General authority and duties of the attorney/GAL

V. Duties of GAL for the minor child

LEGISLATIVE:

· 2001 Conn. Acts 148 § 1

requires Superior Court judges to appoint guardians ad litem (people who represent a child's best interests) in all abuse and neglect cases, rather than only those they deem appropriate
eliminates a requirement that the child's attorney and guardian ad litem be different people, specifies criteria when separate representation is required, and directs courts to appoint as attorneys and guardians ad litem only people knowledgeable about abuse and neglect matters

Summary of Connecticut Public Acts 2001

REGULATIONS:

· Code of Federal Regulations

45 C.F.R. § 1340.14(g) (2006). Guardian ad litem.

“In every case involving an abused or neglected child which results in a judicial proceeding, the State must insure the appointment of a guardian ad litem or other individual whom the State recognizes as fulfilling the same functions as a guardian ad litem, to represent and protect the rights and best interests of the child.”

COURT RULES

Connecticut Probate Practice Book (4th ed. Revised—2000)

· Rule 3.5. Appointment of guardian ad litem in conservator proceedings

· Rule 4. Guardians ad litem

4.1. Definitions for purpose of this rule

4.2. Appointment of a Guardian ad Litem

4.3. Duties and functions of the Guardian ad Litem

4.4. Who shall be appointed Guardian ad Litem

4.5. Limitations on authority of Guardian ad Litem

4.6. Appeals and employment of counsel

4.7. Compensation of Guardian ad Litem

· Connecticut Practice Book (2007)

Chapter 25. Superior Court—Procedure in family matters

§ 25-62 Appointment of Guardian Ad Litem

Chapter 44. Superior Court—Procedure in criminal matters

§ 44-20. Appointment of Guardian Ad Litem

LEGISLATIVE REPORTS:

· SUSAN PRICE, GUARDIAN AD LITEM PROGRAMS: CONNECTICUT AND MASSACHUSETTS, Connecticut General Assembly, Office of Legislative Research, Report No. 2007-R-0414 (August 8, 2007). “You asked for a comparison of guardian ad litem programs in Connecticut and Massachusetts family courts.”

· GEORGE COPPOLO, IMMUNITY-ATTORNEYS APPOINTED IN CHILD CUSTODY CASES, Connecticut General Assembly, Office of Legislative Research, Report No. 2004-R-0226 (February 20, 2004). “You asked whether attorneys the Superior Court appoints to represent minor children in divorce and child custody cases are immune from liability in connection with such representation.”

· Pamela Lucas, Guardians Ad Litem and Counsel in Custody Cases, Connecticut General Assembly, Office of Legislative Research, Report No. 97-R-0290 (Feb. 21, 1997).

· Lawrence K. Furbish, Guardian Ad Litem in Neglect and Abuse Cases, Connecticut General Assembly, Office of Legislative Research, Report No. 98-R-0648 (April 23, 1998).

FORMS:

· 2 Connecticut Practice Book Form 106.16 (1978).

Motion for appointment of guardian ad litem

· Michael J. Dale et al., Representing the Child Client (2007).

App. 3F. Petition of Minor Plaintiff for Appointment of Guardian Ad Litem; Acceptance; and Order of Court

CASES:

· Carrubba v. Moskowitz, 274 Conn. 533, 549, 877 A.2d 773 (2005). “Therefore, because the complaint was not grounded on any conduct by the defendant in which she acted outside the usual role of an attorney for the minor children, she is entitled to absolute immunity.”

· In re Christina M., 90 Conn. App. 565, 579, 877 A.2d 941 (2005). “We therefore reject the argument of the parents that the trial court failed to fulfill its constitutional obligation to provide counsel for the daughters. In light of the record before it, the court properly appointed an attorney to represent the daughters' legal interests. Until the court was asked also to appoint a guardian ad litem,that was all that our constitution required the court to do.”

· In re William H., 88 Conn. App. 511, 870 A.2d 1102 (2005). “Our second concern is the guardians' role in the decision-making process of the court. As a general rule, the role of a guardian ad litem is to represent the best interest of the child. See In re Tayquon H., 76 Conn. App. 693, 704, 821 A.2d 796 (2003). It would follow that in this case, the guardians' role would have been to review the materials requested and to communicate to the court which materials they believed should or should not be released in light of the best interests of the children they represented.[fn11] The guardians, however, premised their opinions as to what the court should or should not release on whether § 46b-124 precluded the requested disclosure.”

· Shockley v. Okeke, 92 Conn. App. 76, 80-82, 882 A.2d 1244 (2004). “A change of name may be sought either in the Superior Court under General Statutes §§ 52-11 or 46b-1(6), or before the Probate Court under General Statutes § 45a-99. The only guidance on filing a change of name request for a minor is provided by Practice Book § 9-24, which by its terms governs an application for a name change brought by a minor child through his or her next friend under General Statutes § 52-11. As a general matter, a minor may bring suit only through a guardian or next friend. Mendillo v. Board of Education, 246 Conn. 456, 460 n. 3, 717 A.2d 1177 (1998). Parents commonly serve as next friend. . . . To serve as next friend, ‘no previous appointment by the court is required, and the prochein ami named in the writ is permitted to appear and prosecute in the infant's name, though if he is not a proper person or fails to properly discharge his duties, the court may remove him and appoint another person in his place." McCarrick v. Kealy, 70 Conn. 642, 646, 40 A. 603 (1898). In addition, if the court is concerned that the child's interests are not adequately represented by a parent acting as next friend, it may appoint a guardian ad litem under General Statutes § 45a-132.”

· Lowe v. City of Shelton, 83 Conn. App. 750, 756-757, 851 A.2d 1183 (2004), certification denied 271 Conn. 915. Although there is no appellate case law in Connecticut addressing whether parents, without the aid of an attorney, can represent the interest, as next friends, of their children, the courts in other jurisdictions that have addressed that issue have universally held that they may not do so. The reasoning of the United States Court of Appeals for the Second Circuit is persuasive: ‘The choice to appear pro se is not a true choice for minors who under state law . . . cannot determine their own legal actions. There is thus no individual choice to proceed pro se for courts to respect, and the sole policy at stake concerns the exclusion of non-licensed persons to appear as attorneys on behalf of others.’”

· Oliver v. Oliver, 85 Conn. App. 57, 66, 855 A.2d 1022 (2004). “The defendant argues that the court incorrectly permitted counsel for the minor child to offer his opinion on the ultimate issue of the child's best interest, thereby depriving the defendant of a fair trial. The defendant is mistaken.”

· Kennedy v. Kennedy, 83 Conn. App. 106, 111, 847 A.2d 1104, cert. den. 270 Conn. 915 (2004). “We have held that a court's failure to advise a party of the right to counsel in a contempt proceeding in which he faces potential incarceration, and in the event he is indigent, to court-appointed counsel, is fatal to the finding of contempt and any order related thereto.”

· In re Tayquon H., 76 Conn. App. 693, 821 A.2d 796 (2003).

“On the basis of those allied decisions and amplified by our understanding of the fundamental role of a guardian ad litem, we believe that as between a guardian ad litem and a natural guardian, the presumption should be that the court-appointed guardian ad litem is the proper person to speak for the child for the purposes of the litigation, barring a showing that he or she cannot peroperly fulfill the guardian ad litem role and that another is better suited to the role.” (710)

“It also is clear … that the obligation of the person appointed as counsel is shaped by the Rules of Professional Conduct, which, in pertinent part, obligate counsel to abide by a client’s decisions concerning the objectives of representation… It is when counsel perceives that this obligation is in conflict with the child’s actual best interest that counsel must bring that to the courts’ attention, and the court, in turn, must appoint a separate guardian ad litem to protect and to promote the child’s best interest in the process.” (703)

· Schult v. Schult, 241 Conn. 767, 699 A.2d 134 (1997).

“... we conclude, that where the court has appointed both an attorney and a guardian ad litem to represent a child in a dissolution action, the attorney for the child may advocate a position different from that of the guardian ad litem so long as the trial court determines that it is in the best interests of the child to permit such dual, conflicting advocacy.” (780)

· Newman v. Newman, 235 Conn. 82, 663 A.2d 980 (1995).

“Typically, the child’s attorney is an advocate for the child, while the guardian ad litem is the representative of the child’s best interests. As an advocate, the attorney should honor the strongly articulated preference regarding taking an appeal of a child who is old enough to express a reasonable preference; as a guardian, the attorney might decide that, despite such a child’s present wishes, the contrary course of action would be in the child’s long term best interests, psychologically or financially.” (96-97)

· Orsi v. Senatore, 230 Conn. 459, 645 A.2d 986 (1994).

The appropriateness of the foster parent representing the minor as a next friend when both a guardian and a guardian ad litem have already been appointed.

· Ridgeway v. Ridgeway, 180 Conn. 533, 429 A.2d 801 (1980).

“Under General Statutes §46b-54. the court ‘may’ appoint counsel to protect the interests of a minor child in a dissolution action if it deems it to be in the best interests of the children. The term ‘may’ imports discretion...”

· Cottrell v. Connecticut Bank & Trust, 175 Conn. 257, 398 A.2d 307 (1978). An appeal may be brought by a next friend when the guardian ad litem refuses to appeal

· Potter v. Alcorn, 140 Conn. 96, 99 A.2d 97 (1953)

The probate court has the “power to appoint a guardian ad litem in any proceeding in which the minor’s interest would be affected, whether the interest was pecuniary or not”. The probate court has the power to “make allowance” to the guardian ad litem to compensate him for his services.

STANDARDS:

· American Bar Association Standards of Practice for Lawyers who Represent Children in Abuse and Neglect Cases (A.B.A., 1996), reprinted in Jean Koh Peters, Representing Children in Child Protective Proceedings: Ethical and Practical Dimensions 843 (2d ed., 2001).

· Standards of Practice for Lawyers Representing Children in Custody Cases (Approved by the ABA House of Delegates, August 2003), reprinted in 37 Fam. L. Quart. 131 (2003).

· Connecticut Bar Association, Family Law Section. Committee on The Role of Counsel. Counsel For Children: Guidelines For Courts And Counsel In Civil Custody Cases, 56 Conn. B.J. 484 (1982).

KEY NUMBER:

· West Key Numbers: Infants

# 76. Guardian ad litem or next friend

# 77. —In general

# 78. —Necessity of appointment

# 79. —Time for appointment

# 80. —Proceedings for appointment

# 81. —Eligibility and qualification

# 82. —Termination of authority and appointment of successor

# 83. —Compensation and expenses

# 84. —Rights and powers

# 85. —Duties and liabilities

# 86. —Liabilities on bonds

# 87. —Failure to procure appointment

ENCYCLOPEDIAS:

· 42 Am. Jur. 2d Infants (2000).

§§ 158-201. Representation of Infant

§ 183. Guardian Ad Litem

§ 184. —Scope of discretion

· 43 C.J.S. Infants (2004).

§§ 321-328. Representation of infant by guardian ad litem, next friend, and attorney

§ 321. Generally

§ 322. Necessity for representation

§ 323. —Domestic relations and family law proceedings

§ 324. —Probate proceedings

§ 325. Effect of lack of representation

§ 326. —Waiver of objections

§ 327. Persons who represent infants

§ 328. —Authority to act; consent of infant

§ 329. Appointment of representative, generally

§ 330. Time for appointment

§ 331. Who may apply for appointment

§ 332. Persons who may be appointed; selection criteria

§ 333. Proceedings for, and effect of, appointment

§ 334. Powers, duties, and liabilities of representative

§ 335. —Compromise and settlement of claim

§ 336. —Concessions, waiver of rights, or admissions

§ 337. Appearance and representation by attorney

§ 338. Compensation and allowance for representatives, generally

§ 339. Amount

§ 340. Liability for payment

§ 341. Compensation for attorney

§ 342. Termination of authority

§ 343. Removal

· Sherry S. Zimmerman, Annotation, Parents’ Mental Illness Or Mental Deficiency As Ground For Termination Of Parental Rights—Issues Concerning Guardian Ad Litem And Counsel, 118 ALR5th 561 (2004).

· Susan L. Thomas, Annotation, Liability of Guardian Ad Litem for Infant Party to Civil Suit for Negligence in Connection with Suit, 14 ALR5th 929 (1993).

· Carol A. Crocca, Annotation, Propriety and Prejudicial Effect of Third Party Accompanying or Rendering Support to Witness During Testimony, 82 ALR4th 1038, § 7 (1990).

· Danny R. Veilleux, Annotation, Necessity Or Propriety Of Appointment Of Independent Guardian For Child Who Is Subject Of Paternity Proceedings, 70 ALR4th 1033(1989).

· Thomas R. Malia, Annotation, Validity, Construction, And Application Of Statute Limiting Physician-Patient Privilege In Judicial Proceedings Relating To Child Abuse Or Neglect, 44 ALR4th 649 (1986)

§ 5. Proceedings to terminate parental rights

TEXTS &

TREATISES:

· Arnold H. Rutkin and Kathleen A. Hogan, Connecticut Practice Series, Family Law and Practice with Forms (1999).

Chapter 18. Process

§ 18.10. Service on parties who are incompetent or incarcerated; Service on third parties

Chapter 23. Evidentiary Matters and Trial

§ 23.10. Privileged communications in custody disputes

Chapter 42. Child custody and visitation

§ 42.18. Appointment of a Guardian ad litem

Chapter 45. Attorney fees & expenses

§ 45.16. Fees for counsel for minor child or guardian ad litem

· Arnold H. Rutkin, Gen. Ed. Family Law and Practice (2006).

Chapter 32. Child custody and visitation

§ 32.01[4]. Expanding roles of the attorney in custody controversies

[a] Child’s representatives

[i] Counsel’s role

[ii] Counsel’s duties

· Family Law Practice in Connecticut (1996).

Chapter 7. Trial practice considerations

§ 7.60. Guardian ad litem, p. 7-26

· Ann M. Haralambie, The Child’s Attorney: A Guide to Representing Children in Custody, Adoption, and Protection Cases (1993)

Guardians Ad Litem, p. 5-10

Selected Guidelines for Guardian Ad Litem, Appendix B, p. 239.

Excerpt, D. Whitcomb, Guardians Ad Litems in the Criminal courts (1988), Appendix C, p. 289.

· 2 Sandra Morgan Little, Child Custody & Visitation Law and Practice (2006).

Chapter 12A. Legal representation of children in custody and visitation cases

§ 12A.01. Introduction

§ 12A.02. Appointment of the attorney-guardian ad litem

§ 12A.03. Functions of the attorney-guardian ad litem

§ 12A.04. Performing the functions of attorney-guardian ad litem: A general guide

· 1 Donald T. Kramer, Legal Rights of Children (Rev. 2d ed. 2005).

Chapter 2. Child custody

§ 2:31. Counsel or guardian at litem for the child

Chapter 12. The Guardian ad litem

§ 12:1. The guardian ad litem or next friend: Background

§ 12:2. —Provisions for guardians ad litem in procedural rules and statutes

§ 12:3. The parent as the “duly appointed representative

§ 12:4. Rules and circumstances requiring appointment of guardian ad litem

§ 12:5. Authority and responsibilities of a guardian ad litem

§ 12:6. Payment of fees and expenses to guardians ad litem

§ 12:7. Guardian ad litem’s immunity from suit and harassment

· 2 Donald T. Kramer, Legal Rights of Children (Rev. 2d ed. 2005).

Chapter 16. Child abuse

§ 16:31: The attorney or guardian ad litem for the child

§ 16:32. Immunity of guardian

· Ann M. Haralambie, Handling Child Custody, Abuse and Adoption Cases (1993).

§ 4.24. Independent Representation for the Child [Dependency and Neglect Proceedings]

§§ 11.23-11.24. Independent Representation for the Child [Custody Incedent to Dissolution of Marriage]

§§ 21.04-21.05. Trial Techniques

· 1 Michael J. Dale et al., Representing the Child Client (2007).

§ 4.06. The right to counsel for children in dependency proceedings

[1] The right to independent counsel

[a] Guardian Ad Litem

· 2 Michael J. Dale et al., Representing the Child Client (2007).

§ 9.02[5]. Guardian Ad Litem distinguished from the role of an attorney

ARTICLES:

· Carolyn Wilkes Kaas and Sharon Wicks Dornfeld, Serving as a AMC after Carrubba v. Moskowitz: What Every Judge and Lawyer should know, CONNECTICUT FAMILY LAWYER Issue2 (June 2007).

· Frederic S. Ury, et al., A Law Primer for Risky Behavior in Minors, 14 Conn. Lawyer 12 (November 2003).

· Linda D. Elrod, Raising the Bar for Lawyers Who Represent Children: ABA Standards of Practice for Custody Cases, 37 Fam. L. Quart. 105 (2003).

· Robert Solomon, Staying in Role: Representing Children in Dependency and Neglect Cases, 70 Conn. B.J. 258 (1996).

· Edward Sokolnicki, Attorney as Guardian Ad Litem for a Child in Connecticut,. 5 Conn. Prob. L.J. 237 (1991).

· Wilhelm, Hemenze & Fowler, The Role of the Guardian Ad Litem in Probate Proceedings, 65 Conn. B.J. 462 (1991).

· Richard Ducote, Guardians Ad Litem in Private Custody Litigation: The case for Abolition, 3 Loy. J. Pub. Int. L. 106 (2002).

· Judge Chester T. Harhut, An Expanded Role for the Guardian Ad Litem, 51 Juv. & Fam. Ct. J., Summer 2000, at 31.

· Recommendations of the Conference on Ethical Issues in the Legal Representation of Children, 64 Fordham L. Rev. 43 (1996), reprinted in Jean Koh Peters, Representing Children in Child Protective Proceedings: Ethical and Practical Dimensions 787 (1997).

· Jean Koh Peters, The Roles and content of Best Interest in Client-Directed Lawyering for Children in Child Protective Proceedings, 64 Fordham L. Rev. 1505 (1996), reprinted in Jean Koh Peters, Representing Children in Child Protective Proceedings: Ethical and Practical Dimensions 483 (1997).

· Sarah H. Ramsey, Representation of the Child in Protection Proceedings: The Determination of Decision-Making Capacity, 17 Fam. L.Q. 287 (1983).

· Roy T. Stuckey, Guardians Ad Litem as Surrogate Parents: Implications for Role Definition and Confidentiality, 64 Fordham L. Rev. 1785 (1996).

· H. Lila Hubert, In the Child’s Best Interests: The Role of the Guardian Ad Litem in Termination of Parental Rights Proceedings, 49 U. Miami L. Rev. 531 (1994).

· Catherine M. Brooks, When a Child Needs a Lawyer, 23 Creighton L. Rev. 757 (1990). (“This essay speaks to that lawyer who has just received a first-time appointment as a guardian ad litem to represent a child.”)

· Rebecca H. Heartz, Guardians Ad Litem in Child Abuse and Neglect Proceedings: Clarifying the Roles to Improve Effectiveness, 27 Fam. L.Q. 327 (1993).

· Janice & Fred Morganroth, Why Winging it Won’t Work: Know Your Role as Guardian Ad Litem or Mediator. Otherwise You May Succumb to Malpractice, 13 Family Advocate, Spring 1991, at 44.

· John H. Lightfoot, Jr., Children’s Rights, Lawyers Roles: Are the Duties of a Guardian Ad Litem the Same as an Advocate for the Child? Yes. No. Maybe, 10 Family Advocate, Winter 1988, at 4.

COMPILER:

· Lawrence Cheeseman, Supervising Law Librarian, Connecticut Judicial Branch, Law Library at Middletown, One Court Street, Middletown, CT 06457. EMAIL

Table 1 Public Act No. 01-148 sec. 1

Public Act No. 01-148 § 1

Substitute House Bill No. 6589

AN ACT CONCERNING JUVENILE MATTERS.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 46b-129a of the general statutes is repealed and the following is substituted in lieu thereof:

In proceedings in the Superior Court under section 46b-129: (1) The court may order the child, the parents, the guardian, or other persons accused by a competent witness with abusing the child, to be examined by one or more competent physicians, psychiatrists or psychologists appointed by the court; (2) a child shall be represented by counsel knowledgeable about representing such children who shall be appointed by the court to represent the child [whose fee shall be paid by the parents or guardian, or the estate of the child, or, if such persons are unable to pay, by the court. In all cases in which the court deems it appropriate, the court shall also appoint a person, other than the person appointed to represent the child, as guardian ad litem for such child to speak on behalf of the best interests of the child, which guardian ad litem is not required to be an attorney-at-law but shall be knowledgeable about the needs and protection of children and whose fee] and to act as guardian ad litem for the child. The primary role of any counsel for the child including the counsel who also serves as guardian ad litem, shall be to advocate for the child in accordance with the Rules of Professional Conduct. When a conflict arises between the child's wishes or position and that which counsel for the child believes is in the best interest of the child, the court shall appoint another person as guardian ad litem for the child. The guardian ad litem shall speak on behalf of the best interest of the child and is not required to be an attorney-at-law but shall be knowledgeable about the needs and protection of children. In the event that a separate guardian ad litem is appointed, the person previously serving as both counsel and guardian ad litem for the child shall continue to serve as counsel for the child and a different person shall be appointed as guardian ad litem, unless the court for good cause also appoints a different person as counsel for the child. No person who has served as both counsel and guardian ad litem for a child shall thereafter serve solely as the child's guardian ad litem. The counsel and guardian ad litem's fees, if any, shall be paid by the parents or guardian, or the estate of the child, or, if such persons are unable to pay, by the court; (3) the privilege against the disclosure of communications between husband and wife shall be inapplicable and either may testify as to any relevant matter; and (4) evidence that the child has been abused or has sustained a nonaccidental injury shall constitute prima facie evidence that shall be sufficient to support an adjudication that such child is uncared for or neglected.

Table 2 Guardian ad litem in Conservatorship Proceeding

Guardian ad litem

Conservatorship Proceeding

Connecticut Probate Practice Book

Rule 3.5

Upon the application for the appointment of a conservator, the judge of probate may appoint a GUARDIAN AD LITEM to represent a RESPONDENT who is not represented by counsel.

The judge shall appoint an attorney to represent an elderly person for whom a conservator is sought under Gen. Stat. § 17a-436, if that person has no other legal representation.

Commentary

It is a primary function of the guardian ad litem to assist the court and protect the rights of the RESPONDENT. In protecting the rights of the RESPONDENT, the guardian ad litem may assist the court by providing information needed to make a determination as to what is best for the RESPONDENT. Thus, when appropriate, the guardian ad litem should interview the attending physician, the family, the RESPONDENT, and the prospective conservator. He or she should also inspect the present and proposed place of residence of the RESPONDENT. In short, it is the responsibility of the guardian ad litem to help secure fair and proper treatment for the RESPONDENT.

Particular consideration should be given to the appointment of a guardian ad litem when the court is unable to see the RESPONDENT for reasons other than that the RESPONDENT declines to be present or represented by counsel.

Table 3 Motion for appointment of Guardian Ad Litem

Motion for Appointment of Guardian Ad Litem

The undersigned respectfully represents:

1. (Name), a defendant in the above entitled action, is a minor (or incompetent person).

2. There is no guardian of his estate.

Wherefore, the undersigned moves that a guardian ad litem be appointed for this defendant.

(name of applicant)

By________________________

ORDER

The foregoing motion having been presented to the court, the court finds that (name) is a minor (or incompetent person) and the court appoints (name and residence) guardian ad litem for him.

By the Court ( , J.)

___________________________

Assistant Clerk

Section 2

Attorney for the Minor Child

A Guide to Resources in the Law Library

SCOPE:

Bibliographic resources relating to the role of the attorney for a minor child (AMC) in legal proceedings and how this role differs from that of the guardian ad litem (GAL).

DEFINITIONS:

· “The primary role of any counsel for the child including the counsel who also serves as guardian ad litem, shall be to advocate for the child in accordance with the Rules of Professional Conduct. When a conflict arises between the child's wishes or position and that which counsel for the child believes is in the best interest of the child, the court shall appoint another person as guardian ad litem for the child. The guardian ad litem shall speak on behalf of the best interest of the child and is not required to be an attorney-at-law but shall be knowledgeable about the needs and protection of children. In the event that a separate guardian ad litem is appointed, the person previously serving as both counsel and guardian ad litem for the child shall continue to serve as counsel for the child and a different person shall be appointed as guardian ad litem, unless the court for good cause also appoints a different person as counsel for the child. No person who has served as both counsel and guardian ad litem for a child shall thereafter serve solely as the child's guardian ad litem.” CONN. GEN. STATS. § 46b-129a(2) (2007).

STATUTES

Conn. Gen. Stat. (2007)

· § 45a-620. Appointment of counsel. Appointment of Guardian ad litem to speak on behalf of best interests of minor. (Probate Court).

· § 46b-54. Counsel for minor children. Duties.

· § 46b-62. Orders for payment of attorney’s fees in certain actions.

· § 46b-129a. Examination by physician. Appointment of counsel and guardian ad litem.

LEGISLATIVE:

· 2001 Conn. Acts 148

1. requires Superior Court judges to appoint guardians ad litem (people who represent a child's best interests) in all abuse and neglect cases, rather than only those they deem appropriate

2. eliminates a requirement that the child's attorney and guardian ad litem be different people, specifies criteria when separate representation is required, and directs courts to appoint as attorneys and guardians ad litem only people knowledgeable about abuse and neglect matters

Summary of Public Acts

COURT RULES

Connecticut Practice Book (2007 ed.)

· § 25-24. Motion for appointment of counsel for minor child.

· § 30-3. Advisement of Rights (juvenile matters).

· § 32a-1. Right to Counsel and to Remain Silent (juvenile matters).

RULES OF PROFESSIONAL CONDUCT:

Connecticut Practice Book (2007)

· Rule 1.14 Client under a Disability

(a) When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority ... or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

FORMS:

· Mary Ellen Wynn & Ellen B. Lubell, Handbook of Forms for the Connecticut Family Lawyer 163 (1991)

Form VIII-A-3. Motion for Appointment of Counsel for Minor Children

· Legal Assistance Resource Center of Connecticut, Getting a Lawyer Appointed for Your Child: Divorce, Custody or Visitation Cases (April 2005).

Motion for Appointment of Counsel for Minor Children

CASES:

· Carrubba v. Moskowitz, 274 Conn. 533, 537, 877 A.2d 773(2005). “We agree with the Appellate Court that the defendant was entitled to immunity, but we disagree as to the proper scope of the immunity. We conclude that attorneys appointed by the court pursuant to § 46b-54 are entitled to absolute, quasi-judicial immunity for actions taken during or, activities necessary to, the performance of functions that are integral to the judicial process.”

· In re Tayquon H., 76 Conn. App. 693, 821 A.2d 796 (2003).

· Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676 (1998).

“... the attorney for the child is just that, an attorney, arguing on behalf of his or her client, based on the evidence in the case and the applicable law. The attorney is not, however, a witness, whether quasi-expert or otherwise. Thus, an attorney for a minor child shall be heard in a similar manner as most other attorneys ar heard, ...” (438-439)

· Newman v. Newman, 235 Conn. 82, 663 A.2d 980 (1995).

· Schaffer v. Schaffer, 187 Conn. 224, 445 A.2d 589 (1982)

“The purpose of appointing counsel for a minor child in a dissolution action is to ensure independent representation of the child’s interest and such representation must be entrusted to the professional judgment of appointed counsel within the usual constraints applicable to such representation.” (p.224 n.1)

· Schult v. Schult, 241 Conn. 767, 699 A.2d 134 (1997).

· G.S. v. T.S., 23 Conn. App. 509, 582 A.2d 467 (1990).

“In this case, where custody is hotly contested, where, prior to trial, the court is made aware of allegations of child abuse and sexual molestation, ... it is an abuse of discretion not to appoint counsel for the minor children.” (p. 516)

· Weinstein v. Weinstein, 18 Conn. App. 622, 561 A.2d 443 (1989).

“No authority is given to court appointed counsel to issue orders affecting the parties or their children or to resolve, in quasijudicial fashion, disputes between the parties concerning their children.” (p. 628)

· Ridgeway v. Ridgeway, 180 Conn. 533, 429 A.2d 801 (1980).

STANDARDS:

· Standards of Practice for Lawyers Representing Children in Custody Cases (Approved by the ABA House of Delegates, August 2003), reprinted in 37 Fam. L. Quart. 131 (2003).

ENCYCLOPEDIAS:

· 42 Am. Jur. 2d Infants §§ 158—201(2000). Representation of Infant

· Christopher Bello, Annotation, Validity and Efficacy of Minor’s Waiver of Right to Counsel—Modern Cases, 25 A.L.R. 4^th 1072 (1983).

CLE SEMINARS:

Available at the Norwich Law Library

· Connecticut Bar Association, Advanced and Complex Issues in Juvenile Law (CLE Seminar, Dec. 13, 1996).

· Connecticut Bar Association, Representing Parents or Children in Termination of Parental Rights Cases (CLE Seminar, Oct. 6, 1993).

TEXTS &

TREATISES:

· Arnold H. Rutkin and Kathleen A. Hogan, Connecticut Practice Series, Family Law and Practice with Forms (1999).

Chapter 18. Process

§ 18.10. Service on parties who are incompetent or incarcerated; Service on third parties

Chapter 23. Evidentiary Matters and Trial

§ 23.10. Privileged communications in custody disputes

Chapter 42. Child custody and visitation

§ 42.18. Appointment of a Guardian ad litem

Chapter 45. Attorney fees & expenses

§ 45.16. Fees for counsel for minor child or guardian ad litem

· 3 Arnold H. Rutkin, Gen. Ed. Family Law and Practice (2007).

Chapter 32. Child custody and visitation

§ 32.01[4]. Expanding roles of the attorney in custody controversies

[a] Child’s representatives

[i] Counsel’s role

[ii] Counsel’s duties

· Family Law Practice in Connecticut (1996).

Chapter 7. Trial practice considerations

§ 7.60. Guardian ad litem, p. 7-26

· Ann M. Haralambie, The Child’s Attorney: A Guide to Representing Children in Custody, Adoption, and Protection Cases (1993)

Guardians Ad Litem, p. 5-10

Selected Guidelines for Guardian Ad Litem, Appendix B, p. 239.

Excerpt, D. Whitcomb, Guardians Ad Litems in the Criminal courts (1988), Appendix C, p. 289.

· 2 Sandra Morgan Little, Child Custody & Visitation Law and Practice (2007).

Chapter 12A. Legal representation of children in custody and visitation cases

§ 12A.01. Introduction

§ 12A.02. Appointment of the attorney-guardian ad litem

§ 12A.03. Functions of the attorney-guardian ad litem

§ 12A.04. Performing the functions of attorney-guardian ad litem: A general guide

· 1 Donald T. Kramer, Legal Rights of Children (Rev. 2d ed. 2005).

Chapter 2. Child custody

§ 2:31. Counsel or guardian at litem for the child

Chapter 12. The Guardian ad litem

§ 12:1. The guardian ad litem or next friend: Background

§ 12:2. —Provisions for guardians ad litem in procedural rules and statutes

§ 12:3. The parent as the “duly appointed representative

§ 12:4. Rules and circumstances requiring appointment of guardian ad litem

§ 12:5. Authority and responsibilities of a guardian ad litem

§ 12:6. Payment of fees and expenses to guardians ad litem

§ 12:7. Guardian ad litem’s immunity from suit and harassment

· 2 Donald T. Kramer, Legal Rights of Children (Rev. 2d ed. 2005).

Chapter 16. Child abuse

§ 16:31: The attorney or guardian ad litem for the child

§ 16:32. Immunity of guardian

· Ann M. Haralambie, Handling Child Custody, Abuse and Adoption Cases (1993).

§ 4.24. Independent Representation for the Child [Dependency and Neglect Proceedings]

§§ 11.23-11.24. Independent Representation for the Child [Custody Incedent to Dissolution of Marriage]

§§ 21.04-21.05. Trial Techniques

· Michael J. Dale et al., Representing the Child Client (2007).

§ 4.06[1][a]. Guardian Ad Litem - Dependency Proceedings

§ 9.02[5]. Guardian Ad Litem distinguished from the role of an attorney

· Anne Graffam Walker, Handbook on Questioning Children: A Linguistic Perspective (1999).

LAW REVIEWS:

· Carolyn Wilkes Kaas and Sharon Wicks Dornfeld, Serving as a AMC after Carrubba v. Moskowitz: What Every Judge and Lawyer should know, CONNECTICUT FAMILY LAWYER Issue2 (June 2007).

· Frederic S. Ury, et al., A Law Primer for Risky Behavior in Minors, 14 Conn. Lawyer 12 (November 2003).

· Linda D. Elrod, Raising the Bar for Lawyers Who Represent Children: ABA Standards of Practice for Custody Cases, 37 Fam. L. Quart. 105 (2003).

· Robert Solomon, Staying in Role: Representing Children in Dependency and Neglect Cases, 70 Conn. B.J. 258 (1996).

· Connecticut Bar Association, Counsel for Children: Guidelines for Courts and Counsel in Civil Custody Cases, 56 Conn. B.J. 484 (1982).

· Kim J. Landsman & Martha L. Minow, Note, Lawyering for the Child: Principles of Representation in Custody and Visitation Disputes Arising from Divorce, 87 Yale L.J. 1126 (1978).

· Carolyn Richter & Gina A. Pasquini, The Role of the Counsel for the Minor Child: Minority Report, 6 Conn. Fam. Law. 37 (1991).

· Ann M Haralambie, Representing Children in Civil Cases, 30 Trial, no. 2, 37 (Feb. 1994).

· Nancy W. Perry and Larry L. Teply, Interviewing, Counseling, and In-Court Examination of Children: Practical Approaches for Attorneys, 18 Creighton L. Rev. 1369 (1985), reprinted in Jean Koh Peters, Representing Children in Child Protective Proceedings: Ethical and Practical Dimensions 665 (2d ed., 2001).

· Angela D. Lurie, Representing the Child-Client: Kids are People too; an Analysis of the Role of Legal Counsel to a Minor, 11 N.Y. L. Sch. J. Hum. Rts. 205 (1993).

· Judith Larsen, Does the Child’s Lawyer Owe “The Whole Truth” to the Court in Neglect-Abuse Cases?, 47 Juv. & Fam. Ct. J., Spring 1996, at 49.

· Sarah H. Ramsey, Representation of the Child in Protection Proceedings: The Determination of Decision-Making Capacity, 17 Fam. L.Q. 287 (1983).

COMPILERS:

· Lawrence Cheeseman, Supervising Law Librarian, Connecticut Judicial Branch, Law Library at Middletown, One Court Street, Middletown, CT 06457. EMAIL

Section 3

Removal of a Guardian Ad Litem or Attorney for the Minor Child

A Guide to Resources in the Law Library

SCOPE:

Bibliographic resources relating to the removal of a guardian ad litem or attorney for the minor child, and standing to seek removal of a guardian ad litem or attorney for the minor child.

DEFINITIONS:

· PROBATE COURT PROCEDURES: “The guardian ad litem may be removed by the judge or magistrate which appointed him, without notice, whenever it appears to the judge or magistrate to be in the best interests of the ward or wards of the guardian.” Conn. Gen. Stats. § 45a-132(f)

· JUVENILE MATTERS: “…The primary role of any counsel for the child including the counsel who also serves as guardian ad litem, shall be to advocate for the child in accordance with the Rules of