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  • Writer's pictureDan Pocklington

Representing an Injured Child in Court: The Guardian Ad Litem Process

Updated: Feb 15, 2019

When filing a lawsuit on behalf of a child, California law requires a special process called a Guardian Ad Litem to protect the interests of a child. Anyone over the age of eighteen years can be nominated and approved by the court as a Guardian Ad Litem. Most often, a parent is appointed as the minor’s Guardian Ad Litem. However, that’s not always the case. In some jurisdictions, parents may not act as the Guardian Ad Litem because they were also injured in the same incident. The reason that courts do not allow a parent under these circumstances to act on the child’s behalf is because the adult may be unable to make grounded decisions, often due to a medical condition or injury, or there may be a conflict of interest when it comes to determining who is at fault. In some cases, a relative, close family member, or friend is appointed. In rare cases, the court can appoint a Guardian Ad Litem that is a professional and who has no relationship with the child so that there is no question that they are looking out for the child.

A Guardian Ad Litem’s role is limited to protecting the child’s interests in the litigation, and the role is closely supervised by the judge. A Guardian Ad Litem does not have the authority to make decisions for the child outside the scope of the litigation. Specifically, the Guardian may not compromise fundamental rights, including the right to trial. Thus, when considering the appropriate Guardian Ad Litem for a minor plaintiff in a civil lawsuit, the central issue is the appropriate protection of the minor’s legal right to recover damages or other requested relief.

A court has broad discretion in ruling on a Guardian Ad Litem application. In the absence of a conflict of interest, the appointment is usually made on application only and involves a little exercise of discretion.

If the minor is under 14 years old and is a plaintiff, the appointment must be made before the summons is issued. The appointment may be made without hearing but through an application process called “ex parte application.” Your attorney will complete the application and submit to the court for a final decision.

You should hire an attorney with experience handling cases that require a Guardian Ad Litem, and we’re here to guide you through the process. If you wish for our office to consider taking your case or to offer legal advice, please contact our office to schedule an appointment by calling (925) 295-7348.

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