How Can a Guardian Ad Litem Be Removed in Virginia?

By Kay Lee

A guardian ad litem is a legal term which specifies that an individual has been appointed to act on behalf of another individual -- typically, this is a child, although it may be others who cannot act on their own behalf. In Virginia, a guardian ad litem must be an attorney licensed in Virginia and in good standing with the Virginia State Bar. The guardian ad litem also must have completed a required training course. Guardians ad litem are instructed to work in the best interests of the person whom they represent, and courts view the recommendations of the guardian ad litem as significant. Given the sensitivity of the position, if the guardian ad litem is not representing the best interest of the person for whom he is appointed -- or, if other problems arise -- a process exists to remove the guardian ad litem.

Guardian Ad Litem's Role

The guardian ad litem is a court-appointed individual who represents people who may lack the mental or legal capacity to represent their own interests in a lawsuit. This requires that the guardian ad litem zealously represent the best interests of the person they have been appointed to represent -- which typically, is a child. The guardian ad litem is the court’s way to protect the child, since he is a minor and is therefore unable to do so. The guardian ad litem must communicate the wishes of the child (if they are known) or make decisions in the child’s best interest or welfare. In Virginia, the term of the guardian ad litem will last through a hearing, for all stages of the proceeding for which the guardian was appointed, or until the guardian is relieved of her duties by the court.

When Are Guardians Ad Litem Appointed?

Since guardians ad litem represent minors, guardians ad litem are not required for every case involving a child, but certain cases come before the juvenile or domestic court which require a guardian ad litem. Courts must appoint a guardian ad litem in cases in which there are allegations of child abuse or if the case is any one of the following: an entrustment agreement, a petition seeking the termination of residual parental rights or where a parent wants to be absolved from the custodial responsibility of their child. Guardians ad litem are also required if a child is seeking emancipation from her parents, cases that involve foster care determinations or where a child is to be committed to a psychiatric institution. Courts have discretion and may appoint a guardian ad litem in cases that involve custody, child support and visitation rights, as well as in certain divorce cases.

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Court-Initiated Removal

As an agent of the court, a guardian ad litem’s performance is overseen by the court in which he was appointed. Accordingly, if a judge does not think that the guardian ad litem has performed in a competent or acceptable manner, the judge can remove the guardian ad litem from the case or the judge may remove him from the list of eligible guardians at litem -- which will prevent his appointment in the future.

Misconduct Inquiry

As attorneys, guardians ad litem are subject to the rules of professional conduct of the Virginia State Bar. If the guardian ad litem assigned to a case has violated any legal ethical rules, you may report them to the Virginia State Bar. For example, if the guardian ad litem violated the confidentiality of her representation, that would violate the guardian’s professional ethical obligations. Also, if the guardian ad litem’s representation caused a conflict of interest where the appointment would directly and adversely affect one of her other clients, this would be a violation and constitute cause to file a misconduct inquiry with the Virginia Bar. Once a misconduct inquiry is filed, the Virginia State Bar will initiate an investigation to determine whether misconduct occurred and, if so, what disciplinary actions the Virginia State Bar should take.

Request to Remove Guardian Ad Litem

Parties to a case may petition the court to remove the guardian ad litem from the case. This petition may not remove a guardian ad litem entirely from the proceedings, as certain cases require the appointment, but it will enable the court to appoint a new guardian ad litem. The motion must be written and filed in the court in which the proceedings are taking place. The motion must state the reasons why the current guardian ad litem is not suitable for the case and a new guardian ad litem would better represent the interests of the child.

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How to File a Motion to Change Guardian Ad Litem
 

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