Rule
8.7. Guardian ad litem. (a)
Qualification. To qualify as a guardian ad litem under N.D.C.C. § 14-09-06.4, a
person must be an attorney licensed in the state of North Dakota.(b) Training
requirements. To be eligible for appointment as a guardian ad litem, an attorney
must have completed 18 hours of guardian ad litem training. To remain eligible
to be appointed as guardian ad litem, an individual shall complete an additional
18 hours of guardian ad litem-related training every 3 years.(c) Criteria for
appointment. A guardian ad litem must be appointed if the court finds an
appointment is necessary to protect the best interests of the child involved. In
determining whether to appoint a guardian ad litem, the court shall consider
among other factors:(1) whether there is an allegation of sexual abuse;(2)
whether there is an allegation of domestic violence resulting in serious bodily
injury or involving the use of a dangerous weapon;(3) whether there is an
allegation of a pattern of domestic violence occurring within a reasonable time
proximate to the proceeding resulting in a reasonable fear for the safety of a
party or the minor child;(4) whether the child has special needs;(5) whether the
child has, at any time, been placed in foster care, or in the home of a third
party;(6) whether there is an allegation the child is in an unstable
environment;(7) whether there has been repeated post-decree litigation involving
custody or visitation issues;(8) whether the interests of the child and either
or both parents are in substantial conflict;(9) whether a guardian ad litem
could provide the court with significant information not otherwise available or
likely to be presented by the parents; and(10) whether there are any other areas
of special concern which may impact the best interests of the child.(d)
Responsibilities of guardian ad litem.(1) A guardian ad litem shall advocate the
best interests of the child as to legal custody, physical placement, visitation,
and support. A guardian ad litem shall function independently, in the same
manner as an attorney for a party to the action, and, consistent with the Rules
of Professional Conduct, shall consider, but not be bound by, the wishes of the
child or others as to the best interests of the child.(2) After appointment, a
guardian ad litem shall:(A) work with a custody investigator, if appointed, to
coordinate investigation activities and avoid duplicating services;(B) interview
and observe the child to ascertain the facts relevant to custody, the child's
wishes, the need for independent evaluation, and the need for and
appropriateness of interim judicial relief;(C) advise the child and the child's
parents of the role and responsibilities of the guardian ad litem;(D) interview
potential witnesses, lay and expert, with relevant knowledge of the child or
parties; and(E) participate in meetings impacting the life of the child,
including permanency planning meetings and other activities as may be directed
by the court.(3) A guardian ad litem may apply for a court order to protect the
child, to obtain temporary relief, to determine custody, or to determine
visitation.(4) A guardian ad litem shall participate whenever any party requires
an interim court order which may affect the child.(5) A guardian ad litem may
request an independent court-ordered evaluation or study, including a custody
investigation.(6) A guardian ad litem shall participate in all pretrial
procedures and negotiations and endeavor to resolve the case without the need
for a trial.(7) A guardian ad litem shall observe all statutes, rules, and
regulations concerning confidentiality. A guardian ad litem may not disclose or
participate in the disclosure of information to any person who is not a party to
the case, except as necessary to perform the guardian ad litem duties or as may
be specifically provided by law.(e) Court proceedings. A guardian ad litem may
present a case, cross-examine a witness, deliver a summation, prepare a
memorandum of law, file a motion, and file or participate in an appeal on issues
involving the best interests of the child.
· The
court, upon the request of either party or upon its own motion, may appoint a
guardian ad litem in an action for a protection order to represent a minor
concerning custody, support, or visitation if either party or the court has
reason for special concern as to the immediate future of the minor. The guardian
ad litem may be appointed at the time of a temporary protection order or at any
time before the full hearing. The role of the guardian ad litem consists of
investigation and making a recommendation and report to the court. At no time
may the involvement of the guardian ad litem alter the requirements set forth in
section 14-07.1-03. The appointment of the guardian ad litem expires immediately
after the full hearing unless the court retains the right, upon specific finding
of need, to continue the appointment of a guardian ad litem to participate in
visitation. The guardian ad litem shall have access to records before the court
except as otherwise provided by law. The court may direct either or both parties
to pay the guardian ad litem fees established by the court. If neither party is
able to pay the fees, the court, after notice to the state's attorney of the
county of venue, may direct the fees to be paid, in whole or in part, by the
county of venue. The court may direct either or both parties to reimburse the
county, in whole or in part, for the payment.
Alisha Ankers, Attorney at Law |
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