Minnesota General Rules of Practice for the District Courts
Provided by the Minnesota Supreme Court Commissioner’s Office
TITLE X. RULES OF GUARDIAN AD LITEM PROCEDURE
Rule 901. Purpose Statement; Implementation
901.01 Purpose of Rules
901.02 Implementation
Rule 902. Minimum Qualifications
Rule 903. Selection of Guardians Ad Litem
903.01 Recruitment
903.02 Application Process
903.03 Screening Process
903.04 Panel of Approved Guardians Ad Litem
Rule 904. Appointment of Guardian Ad Litem
Rule 905. Oath or Affirmation
Rule 906. Supervision and Evaluation of Guardians Ad Litem; Removal from Panel
906.01 Support, Advice, and Supervision
906.02 Performance Evaluation
906.03 Removal from Panel
Rule 907. Complaint Procedure; Removal of Guardian Ad Litem from Particular Case
907.01 Complaint Procedure
907.02 Removal of Guardian Ad Litem from Particular Case
Rule 908. General Responsibilities of Guardians Ad Litem; Other Roles Distinguished; Contact with Court
908.01 General Responsibilities of Guardian Ad Litem
908.02 Other Roles Distinguished
908.03 Contact with Court
Rule 909. Rights and Powers of Guardians Ad Litem
909.01 Rights and Powers of Guardians Ad Litem in Every Case
909.02 Rights and Powers of Guardian Ad Litem in Every Case
Rule 910. Pre-Service Training Requirements
910.01 Pre-Service Training Requirements for New Guardians Ad Litem
910.02 Pre-Service Training Requirements for Existing Guardians Ad Litem
910.03 Internship Requirements
Rule 911. Continuing Education Requirements
Rule 912. Training Curricula; Certification of Trainers
912.01 Pre-Service Training Curriculum
912.02 Continuing Education Curriculum
912.03 Certification of Trainers
Rule 913. Community Education
Rule 901. Purpose Statement;
Implementation
The purpose of Rules 902 to 913 is to provide standards governing the
qualifications, recruitment, screening, training, selection, appointment,
supervision, evaluation, responsibilities, and removal of guardians ad litem
appointed to advocate for the best interests of the child in family and
juvenile court cases. For
purposes of Rules 902 to 913:
(a) The
phrase “family court” case refers to the types of proceedings set forth in the
Comment to Rule 301 of these rules, including, but not limited to, marriage
dissolution, legal separation, and annulment proceedings; child custody
enforcement proceedings; domestic abuse and harassment proceedings; support
enforcement proceedings; contempt actions in family court; parentage
determination proceedings; and other proceedings that may be heard or treated
as family court matters.
(b) The phrase
“juvenile court” case refers to the child protection matters set forth in Rule
37.01 of the Minnesota Rules of Juvenile Procedure, including all child in
need of protection or services, neglected and in foster care, termination of
parental rights, review of out of home placement matters, and other matters
that may be heard or treated as child protection matters, including, but not
limited to, suspension of parental rights proceedings, guardianship
proceedings, and adoption proceedings occurring as part of a permanency plan.
The phrase “juvenile court” case also refers to the juvenile
delinquency proceedings set forth in Rule 1.01 of the Minnesota Rules of
Juvenile Procedure.
(Amended
effective January 1, 1999.)
Rules 901 to 913 shall be implemented in each judicial district on or
before the date for implementation prescribed by the Supreme Court in its
order adopting Rules 901 to 913.
The chief judge of the judicial district shall be responsible for insuring the
implementation of Rules 901 to 913.
The responsibilities set forth in Rules 903 to
907 shall be carried out in each judicial district at the
direction of one or more program coordinators to be designated by the chief
judge of the judicial district.
The chief judge may establish a panel to assist in the selection of the
program coordinator(s). The
designation of a program coordinator may be terminated by the judges of the
judicial district.
A program coordinator may be an individual, other than a judge or
referee serving in the judicial district, or an organization.
To be eligible to serve as a program coordinator, an individual or, if
an organization, the person directly responsible for its operation, must have
management experience, must complete the program coordinator orientation, and
must satisfy the minimum qualifications set forth in Rule 902,
clauses (c), (d), (g), and (h).
An individual or organization may serve in more than one county in a judicial
district. A program coordinator
may delegate the responsibilities set forth in Rules 903
and 904 to a person who has not completed the training
requirements set forth in Rule 910, provided that if the
person is not under the direct supervision of the program coordinator, the
person to whom the responsibilities are delegated has completed the program
coordinator orientation and the delegation must be approved by the chief judge
of the judicial district. A
person who has concerns regarding the performance of a program coordinator may
submit those concerns in writing to the chief judge of the district.
The chief judge, or chief judge’s designee, shall take whatever action,
if any, the chief judge determines to be appropriate.
(Amended effective January 1, 1999.)
Advisory Task Force Comments
Rule 901.02 is designed to allow judicial
districts flexibility in the implementation of Rules 902 to 913.
Both single-county and multi-county judicial districts have used
a variety of guardian ad litem programs within a district.
Rule 901.02
allows that practice to continue.
For example, the chief judge of a single-county judicial district could
designate one or more individuals or organizations to act in the
capacity of program coordinator.
Likewise, the chief judge of a multi-county judicial district
could designate one individual or organization to act in the capacity
of program coordinator for all counties in the judicial district or
could designate more than one individual or organization to act in that
capacity for one or more of the counties in the district.
A program coordinator could be a district court or county court
administrator or a member of an administrator's staff, or could be
an organization providing guardian ad litem services.
Likewise, a program coordinator could delegate the
responsibilities set forth in Rules 3 and 4 to a member of the program
coordinator’s staff or, for example, to the director of court services
if the delegation is approved by the chief judge of the judicial
district.
Rule 902. Minimum Qualifications
Before a person may be recommended for service as a guardian ad litem
pursuant to Rule 904, the person must satisfy the
following minimum qualifications:
(a)
have an abiding interest in children and their rights and needs;
(b)
have sufficient listening, speaking, and writing skills in the person’s
primary language to successfully conduct interviews, prepare written reports,
and make oral presentations;
(c)
not have been involved in any conduct or activity that would interfere
with the person’s ability to discharge the duties assigned by the court;
(d)
have knowledge and an appreciation of the ethnic, cultural, and
socio-economic backgrounds of the population to be served;
(e)
be available for at least 18 months and have sufficient time, including
evenings and weekends, to gather information, make court appearances, and
otherwise discharge the duties assigned by the court;
(f)
have the ability to (1) relate to a child, family members, and
professionals in a careful and confidential manner; (2) exercise sound
judgment and good common sense; and (3) successfully discharge the duties
assigned by the court;
(g)
not have been removed from a panel of approved guardians ad litem
following an unsatisfactory performance evaluation pursuant to
Rule 906.03; and
(h)
have satisfactorily completed the pre-service training requirements set
forth in Rule 910, and demonstrated a comprehension of
the responsibilities of guardians ad litem as set forth in
Rule 908.01.
(Amended effective January 1, 1999.)
Rule 903. Selection of Guardians
Ad Litem
The recruitment of persons to apply to be guardians ad litem shall be
announced to the general public.
Public announcements shall be made by, or under the direction of, the program
coordinator. Every public
announcement shall contain an equal opportunity statement, and a reasonable,
good faith effort shall be made to solicit applications from individuals whose
gender and ethnic, racial, cultural, and socio-economic backgrounds reflect
the diversity of the population the applicant is expected to serve.
Announcements shall be provided to tribal social service agencies and
to public agencies and private organizations serving ethnic and cultural
communities, and shall be placed in publications directed to ethnic and
cultural communities in the county or counties to be served.
(Amended effective January 1, 1999.)
Rule 903.02 Application Process
Any person who desires to become a guardian ad litem shall be required
to submit a completed written application.
The application shall address the minimum qualifications set forth in
Rule 902 and may be translated into other languages to
accommodate applicants whose primary language is not English.
Every completed application must be accompanied by a signed release of
information authorization sufficient to enable the program coordinator to
independently verify the facts set forth in the application and freely check
into the applicant’s background and qualifications.
(Amended effective January 1, 1999.)
Before an applicant is approved by the program coordinator for
inclusion on a panel of guardians ad litem maintained pursuant to
subsection .04 of this rule,
(a)
the written application shall be reviewed,
(b)
the applicant shall be interviewed,
(c)
the applicant’s references shall be contacted, and
(d)
a criminal history and personal background check shall be completed.
(Amended effective January 1, 1999.)
Rule 903.04 Panel of Approved Guardians Ad Litem
Each program coordinator shall maintain a current panel of approved
guardians ad litem. To be
included on the panel, a guardian ad litem shall satisfy the minimum
qualifications set forth in Rule 902.
(Amended effective January 1, 1999.)
Rule 904. Appointment of Guardian
Ad Litem
Rule 904.01
Request by Court; Recommendation of Guardian Ad Litem for Appointment
Except as provided in subsection .02 of this
rule, when the court determines that the appointment of a guardian ad litem is
appropriate in a particular case, the court shall request that the program
coordinator recommend a guardian ad litem for appointment.
In cases where the appointment of a guardian ad litem is statutorily
mandated, the request shall be made at the earliest practicable time.
Upon receipt of a request, the program coordinator shall promptly
recommend a guardian ad litem to the court, applying the factors set forth in
subsection .03 of this rule.
Unless the court determines, in the exercise of judicial discretion and
applying the factors set forth in subsection .03 of this rule, that the
guardian ad litem recommended is not appropriate for appointment, and
communicates the reasons for that determination to the program coordinator,
the court shall enter a written order pursuant to subsection .04 of this rule
appointing the guardian ad litem recommended.
If the court communicates a determination to not appoint the guardian
ad litem recommended, the program coordinator shall promptly recommend another
guardian ad litem for appointment.
(Amended effective January 1, 1999.)
Rule 904.02 Direct Selection by Court
When the court determines that an emergency exists which requires the
appointment of a guardian ad litem with such immediacy that completion of the
process set forth in subsection .01 of this rule is not
practical, the court may select a guardian ad litem for appointment, applying
the factors set forth in subsection .03 of this rule.
The court shall enter an order pursuant to subsection .04 of this rule
appointing the guardian ad litem.
(Amended effective January 1, 1999.)
Rule 904.03 Factors to be Considered in Selection
All pertinent factors shall be considered in the identification and
selection of the guardian ad litem to be appointed, including the age, gender,
race, cultural heritage, and needs of the child; the cultural heritage,
understanding of ethnic and cultural differences, background, and expertise of
each available guardian ad litem, as those factors relate to the needs of the
child; the caseload of each available guardian ad litem; and such other
circumstances as may reasonably bear upon the matter.
In every case, the goal is the prompt appointment of an independent
guardian ad litem to advocate for the best interests of the child.
To be appointed pursuant to subsection .04 of
this rule, a guardian ad litem must meet the minimum qualifications set forth
in Rule 902, must have no conflict of interest regarding
the case, and must be listed on a panel of approved guardians ad litem
maintained pursuant to Rule 903.04.
The parties to a case may recommend that a particular guardian ad litem
be appointed, but may not, by agreement, select, or preclude the selection of
a particular guardian ad litem for appointment.
No person shall be appointed as a guardian ad litem in any case
governed by the Indian Child Welfare Act or the Minnesota Indian Family
Preservation Act unless that person demonstrates knowledge and an appreciation
of the prevailing social and cultural standards of the Indian community in
which the parent or extended family resides or with which the parent or
extended family members maintain social and cultural ties.
(Amended effective January 1, 1999.)
Rule 904.04 Appointment Order; Specification of Duties
A guardian ad litem shall not be appointed or serve except upon written
order of the court. The order
shall set forth the role of a guardian ad litem; the specific duties to be
performed by the guardian ad litem in the case; establish, to the extent
appropriate, deadlines for the completion of the duties set forth; and the
duration of the appointment.
(Amended effective January 1, 1999.)
Prior to performing the responsibilities of a guardian ad litem, the
guardian ad litem shall take an oath or make an affirmation.
At the discretion of the program coordinator, the oath may be taken or
the affirmation made at the time the guardian ad litem is included on a panel
of approved guardians ad litem maintained pursuant to Rule
903.04, or at the time the guardian ad litem is appointed to a particular
case pursuant to Rule 904.04, or at both times.
(Amended effective January 1, 1999.)
Rule 906.
Supervision and Evaluation of Guardians Ad Litem: Removal From Panel
Rule 906.01 Support, Advice, and Supervision
The program coordinator shall be responsible to provide support,
advice, and supervision to guardians ad litem serving in the county.
(Amended effective January 1, 1999.)
Rule 906.02 Performance Evaluation
The program coordinator(s) shall provide for the periodic evaluation of
the performance of guardians ad litem serving in the judicial district.
The evaluation shall be objective in nature and shall include a review
of the cases assigned to the guardian ad litem; a review of the guardian ad
litem’s compliance with the continuing education requirements set forth in
Rule 911; inquiries to judges presiding over cases in
which the guardian ad litem was appointed; a review of complaints filed
against the guardian ad litem, if any; follow-up checks pursuant to
Rule 902(c), if warranted; and such other information as
may have come to the attention of the program
coordinator. The
evaluation shall be undertaken, at least in part, by means of a written
performance evaluation instrument.
A written record of the completed evaluation shall be maintained in the
guardian ad litem’s personnel file.
The performance of each guardian ad litem shall be evaluated once
during the first six months after the guardian ad litem is first appointed as
a guardian ad litem and, thereafter, at least annually.
(Amended effective January 1, 1999.)
Rule 906.03 Removal From Panel
On the basis of the performance evaluation, the program coordinator
shall determine whether to retain the guardian ad litem on the panel of
approved guardians ad litem maintained pursuant to Rule
903.04. A guardian ad litem
removed from a panel of approved guardians ad litem following an
unsatisfactory performance evaluation shall not be eligible for service as a
guardian ad litem in any judicial district.
When a guardian ad litem is removed from a panel of approved guardians
ad litem following an unsatisfactory performance evaluation, notice of the
removal shall be given by the program coordinator to the State Court
Administrator. The State Court
Administrator shall maintain a list of guardians ad litem removed from panels
of approved guardians ad litem following unsatisfactory performance
evaluations. A guardian ad litem
who has been removed from the panel of approved guardians ad litem following
an unsatisfactory performance evaluation may submit in writing to the chief
judge a request that the chief judge review the decision of the program
coordinator.
(Amended effective January 1, 1999.)
Advisory Task Force Comments
A guardian ad litem may receive an unsatisfactory performance
evaluation and be removed from the panel of guardians ad litem for
failure to comply with a directive of the court, including the
provisions of the order appointing the guardian ad litem; failure to
comply with the responsibilities set forth in Rule
908.01; or for any other reason deemed appropriate by the
program coordinator.
In appropriate cases, as an alternative to removal from the
panel of guardians ad litem following an unsatisfactory performance
evaluation, the program coordinator may place the guardian ad litem on
probation, require the guardian ad litem to complete a mentorship,
require the guardian ad litem to attend additional training, or take
other action deemed appropriate by the program coordinator under the
circumstances.
Rule 907. Complaint Procedure;
Removal of Guardian Ad Litem from Particular Case
Rule 907.01 Complaint Procedure
A person who has concerns regarding the performance of a guardian ad
litem may present those concerns to the program coordinator.
Upon receipt of a signed, written complaint regarding the performance
of a guardian ad litem, the program coordinator shall promptly conduct an
investigation into the merits of the complaint.
In conducting the investigation, the program coordinator shall seek
information from the person making the complaint and the guardian ad litem,
and may seek information from any other source deemed appropriate by the
program coordinator. Upon
completion of the investigation, the program coordinator shall take whatever
action the program coordinator determines to be appropriate, and shall prepare
a written report describing the nature of the complaint, the nature and extent
of the investigation conducted, and the action taken.
A copy of the report shall be provided to the person making the
complaint and to the guardian ad litem and, upon request, the complaint,
report, or other information shall be made available as permitted by the
applicable statutes or rules governing the disclosure of information.
If the complaint is found to be meritorious, a copy of the
investigation report shall be submitted to the appointing judge.
A person receiving the report may request that the chief judge review
the decision of or action(s) taken by the program coordinator.
Unless authorized by written order following an in camera review
by the court, neither the report nor the subject matter of the report shall be
introduced as evidence or used in any manner in any case in which the guardian
ad litem is serving, has served, or may serve in the future.
(Amended effective January 1, 1999.)
Rule 907.02 Removal of Guardian Ad Litem From Particular Case
A guardian ad litem appointed to serve in a particular case may be
removed from the case only by order of the presiding judge.
A party who wishes to seek the removal of a guardian ad litem for cause
must proceed by written motion before the judge presiding over the case.
A motion to remove a guardian ad litem for cause shall be served upon
the parties and the guardian ad litem and filed and supported in compliance
with the applicable rules of court.
At the time the motion is served, a copy of the motion and all
supporting documents shall be provided to the program coordinator by the party
making the motion. A guardian ad
litem who has been removed from a particular case may submit in writing to the
chief judge a request that the chief judge review the decision of the
presiding judge.
(Amended effective January 1, 1999.)
Advisory Task Force Comments
As the result of an investigation regarding a complaint, the
program coordinator may reprimand or counsel the guardian ad litem,
place the guardian ad litem on probation, require the guardian ad litem
to complete a mentorship, require the guardian ad litem to attend
additional training, remove the guardian ad litem from the panel of
approved guardians ad litem, or take other steps deemed appropriate
under the circumstances.
A guardian ad litem may be removed from a particular case by
the presiding judge for failure to comply with a directive of the
court, including the provisions of the order appointing the guardian ad
litem; failure to comply with the responsibilities set forth in
Rule 908.01; or for any other reason deemed
appropriate by the presiding judge.
As an alternative to removal from a specific case, the
presiding judge may reprimand the guardian ad litem, place the guardian
ad litem on probation, require the guardian ad litem to complete a
mentorship, require the guardian ad litem to attend additional
training, remove the guardian ad litem from the panel of approved
guardians ad litem, or direct other action deemed appropriate under the
circumstances.
Rule 908.01 General Responsibilities of Guardians Ad Litem
Consistent with the responsibilities set forth in Minnesota Statutes
section 260.155, subdivision 4(b), and section 518.165, subdivision 2a, other
applicable statutes and rules of court, and the appointment order entered
pursuant to Rule 904.04, in every family court and
juvenile court case in which a guardian ad litem is appointed, the guardian ad
litem shall perform the responsibilities set forth in clauses (a) to (n).
(a) The
guardian ad litem shall advocate for the best interests of the child.
(b) The guardian ad
litem shall exercise independent judgment, gather information, participate as
appropriate in negotiations, and monitor the case, which activities must
include, unless specifically excluded by the court, reviewing relevant
documents; meeting with and observing the child in the home setting and
considering the child's wishes, as appropriate; and interviewing parents,
caregivers, and others with knowledge relevant to the case.
(c) The guardian ad
litem shall, as appropriate to the case, make written and/or oral reports to
the court regarding the best interests of the child, including conclusions and
recommendations and the facts upon which they are based.
(d) The guardian ad
litem shall complete work in a timely manner, and advocate for timely court
reviews and judicial intervention, if necessary.
(e) The guardian ad
litem shall be knowledgeable about community resources for placement,
treatment, and other necessary services.
(f) The
guardian ad litem shall maintain the confidentiality of information related to
a case, with the exception of sharing information as permitted by law to
promote cooperative solutions that are in the best interests of the child.
(g) The guardian ad
litem shall, during service as a guardian ad litem, keep all records, notes,
or other information confidential and in safe storage.
At the conclusion of service, the guardian ad litem shall keep or
destroy the notes and records in accordance with the requirements of the
guardian ad litem program.
(h) The guardian ad
litem shall complete continuing education requirements, and seek advice as
necessary from the program coordinator or, if the program coordinator is not
available, from another guardian ad litem.
(i) The
guardian ad litem shall treat all individuals with dignity and respect while
carrying out her or his responsibilities.
(j) The
guardian ad litem shall be knowledgeable about and appreciative of the child’s
religious background and racial or ethnic heritage, and sensitive to the
issues of cultural and socio-economic diversity, and in all cases governed by
the Indian Child Welfare Act or the Minnesota Indian Family Heritage
Preservation Act shall apply the prevailing social and cultural standards of
the Indian community in which the parent or extended family resides or with
which the parent or extended family members maintain social and cultural ties.
(k) The guardian ad
litem shall use the guardian ad litem appointment and authority appropriately
to advocate for the best interests of the child, avoid any impropriety or
appearance of impropriety, and not use the position for personal gain.
(l) The
guardian ad litem shall comply with all state and federal laws regarding the
reporting of child abuse and/or neglect.
(m) The guardian ad litem
shall inform individuals contacted in a particular case about the role of the
guardian ad litem in the case.
(n) The guardian ad
litem shall ensure that the appropriate appointment and discharge documents
are timely filed with the court.
(Amended
effective January 1, 1999.)
Rule 908.02 Other Roles Distinguished
In a case in which a guardian ad litem is serving pursuant to
Rule 904.04 the guardian ad litem may not be ordered
to, and may not perform the role of mediator, as that role is prescribed in
Minnesota Statutes section 518.619 and Rule 310 of these rules, or visitation
expeditor, as that role is prescribed in Minnesota Statutes sections 518.619
and 518.1751. Unless specified in
the appointment order entered pursuant to Rule 904.04,
a guardian ad litem shall not conduct custody or visitation evaluations.
A guardian ad litem may not be ordered to conduct a custody or
visitation evaluation unless the court makes specific findings in the
appointment order that there is no other person who is regularly responsible
for the performance of, or who is available to conduct, custody visitation
evaluations, and that the guardian ad litem has been properly trained to
conduct those evaluations. If
ordered to conduct a custody or visitation evaluation, the guardian ad litem
shall, as applicable to the case, apply the factors set forth in Minnesota
Statutes section 257.025 or section 518.17, subdivisions 1 and 2, and shall be
subject to the requirements of Minnesota Statutes section 518.167.
Amended effective January 1, 1999.)
Rule 908.03 Contact with Court
xcept as to procedural matters not affecting the merits of a case, all
communications between the court and the guardian ad litem shall be in the
presence of the parties or in writing with copies to the parties, or if
represented, the party’s attorney.
Amended effective January 1, 1999.)
Advisory Task Force Comments
Contact with the Child.
The guardian ad litem must have sufficient contact with the
child to ascertain the best interests of the child.
The frequency and duration of contact will vary from child to
child depending upon the nature of the case, the age of the child, and
the needs of the child.
Considering the Child’s Wishes.
The role of a guardian ad litem is to advocate for the best
interests of the child, which interests may or may not conflict with
the wishes of the child. In
arriving at a recommendation as to the child’s best interests, one
factor that may be considered by the guardian ad litem, as appropriate
to each case, is the wishes of the child as to the matters that are
before the court. In that
regard, the guardian ad litem, as appropriate to each case, may attempt
to ascertain the child’s wishes regarding the matters that are before
the court.
If the guardian ad litem determines that it is appropriate to
ascertain the child’s wishes, careful interviewing techniques must be
used to elicit those wishes without creating conflicts for the child.
Directly asking the child for her or his opinion regarding the
matters before the court is not recommended, as doing so may create
conflict for the child. For
example, directly asking the child for a custody preference is not
recommended as it places the child in the position of choosing
between two parents for whom the child may care deeply.
In addition, if the court implements the child’s expressed
preference, the child may feel guilty or may feel that the other
parent has been betrayed.
Instead, questions should be open ended and the guardian ad litem
should be prepared to listen carefully.
If the wishes of the child are ascertained, the guardian ad
litem should use discretion in deciding whether to communicate those
wishes to the court, and/or to the child’s parents, and may do so if it
is in the child’s best interests.
Depending upon a number of factors, including the child’s age, culture,
maturity, emotional stability, and ability to reason, communicate,
and understand, the guardian ad litem must be prepared to choose an
appropriate course of action.
This may include simply listening to the child’s wishes, listening and
reporting them to the court if appropriate, reporting them to the
court even if the guardian ad litem considers them not in the child’s
best interests, or requesting the court to appoint independent legal
counsel for the child for the purpose of representing and advocating
for the child’s wishes.
Pursuant to Rules 4.06 and 40.02 of the Minnesota Rules of
Juvenile Procedure, the child’s guardian ad litem is represented by the
child’s counsel. If the guardian
ad litem determines that the wishes of the child conflict with the
guardian ad litem’s recommendation as to what is in the child’s best
interests, thereby creating a conflict of interest between the child
and the guardian ad litem pursuant to the Rules 4.06 and 40.02, the
guardian ad litem shall notify the child, the child’s counsel if any,
and the court of the existence of the conflict of interest and, if
necessary, shall seek appointment of separate counsel to represent the
guardian ad litem.
Reports to the Court.
Written reports required by any statute or rule shall be
served and filed in a timely manner.
See, e.g., Minn. Gen. R.
Prac. 108 (written reports must be submitted at least ten days
before hearing). Written
reports may be updated by oral comments at the hearing.
Serving as a Custody or
Visitation Evaluator, Mediator, or Visitation Expeditor.
The roles of guardians ad litem and custody evaluators are
not in conflict as, ultimately, each has the responsibility to make
recommendations to the court regarding the best interests of the child.
Therefore, when ordered to do so, a guardian ad litem may
conduct custody and/or visitation evaluations, but only if there are no
other persons in the jurisdiction who are regularly responsible for
serving in such roles, or such person is not available, and the
guardian ad litem (1) is properly trained to conduct such evaluations,
and (2) appropriately applies all statutory factors set forth at
Minnesota Statutes section 518.17, subdivision 1 and 2, (family court
statute) or section 257.025 (parentage statute). Guardians ad
litem have occasionally been assigned the role of mediator or
visitation expeditor. There is an
inherent conflict of interest between the role of a guardian ad litem
and the role of a person appointed to serve as mediator, as that
role is prescribed in Minnesota Statutes section 518.619 and Rule 310
of these rules, or visitation expeditor, as that role is prescribed in
Minnesota Statutes section 518.1751.
Specifically, the responsibilities of mediators or visitation
expeditors to facilitate or conduct negotiations, effect settlements,
or make decisions which may be binding upon the parties, conflict with
the responsibilities of guardians ad litem to advocate for the best
interests of the child. Further,
unlike information and records obtained by guardians ad litem,
information and records obtained by mediators are private and not
available as evidence in court proceedings.
Therefore, no court should order a person to, and no person
should serve in a particular case as both guardian ad litem and
mediator, as that role is prescribed in Minnesota Statutes section
518.619 and Rule 310 of these rules, or visitation expeditor, as that
role is prescribed in Minnesota Statutes section 518.1751.
Rule 908.02,
however, does not preclude a guardian ad litem from facilitating
visitation, or from negotiating or mediating on an informal basis.
Inappropriate Guardian Ad Litem Responsibilities.
The provision of direct services to the child or the child’s
parents is generally beyond the scope of the guardian ad litem’s
responsibilities. Therefore,
except in special circumstances, the appointing court should not order
the guardian ad litem, and the guardian ad litem should not undertake,
to provide such direct services.
Providing such direct services could create a conflict of
interest and/or cause a child or family to become dependent upon the
guardian ad litem for services that should be provided by other
agencies or organizations. The
guardian ad litem may locate and recommend services for the child and
family, but should not routinely deliver services.
Specifically, a guardian ad litem should not:
(a) provide “counseling” or “therapy” to a child or parent; (b)
foster a friendship or “big brother/big sister” relationship with a
child or parent by inviting the child or parent into the home of the
guardian ad litem, routinely entertaining the child or parent at the
movies, or giving money or gifts to the child or parent; (c) give legal
advice or hire an attorney for the child or parent; (d) supervise
visits between the child and parent or third parties, except as ordered
by the court; (e) routinely provide transportation for the child or
parent, except as ordered by the court; (f) provide child care services
for the child; (g) make placement arrangements for the child or remove
a child from the home; or (h) provide a “message service” for parents
to communicate with each other.
Specific Responsibilities of Guardians Ad Litem.
Rule 908.01 sets forth the general
responsibilities of guardians ad litem in every family and juvenile
court case. In addition to
these general responsibilities, the Advisory Task Force also identified
examples of specific responsibilities that may be required of or
assumed by guardians ad litem at different stages of family and
juvenile court proceedings, respectively.
The examples are intended as practical guides for judges
presiding over family and juvenile court proceedings to assist them in
assigning to guardians ad litem only those responsibilities which they
may be expected to perform and for which they have received training.
The examples are also intended as practical guides for guardians
ad litem to assist them in those cases where specific instructions have
not been provided by the appointing judge.
Rule 909. Rights and Powers of
Guardians Ad Litem
Rule 909.01 Rights and Powers of Guardians Ad Litem in Every Case
Consistent with the responsibilities set forth in
Rule 908.01, in every case in which a guardian ad litem is appointed
pursuant to Rule 904.04, the guardian ad litem shall
have the rights and powers set forth in clauses (a) to (e).
(a)
The guardian ad litem shall have access to the child and to all
information relevant to the child’s and family’s situation.
The access of the guardian ad litem to the child and all relevant
information shall not be unduly restricted by any person or agency.
(b)
The guardian ad litem shall be furnished copies of all pleadings,
documents, and reports by the party which served or submitted them.
A party submitting, providing, or serving pleadings, documents, or
reports shall simultaneously provide copies to the guardian ad litem.
(c)
The guardian ad litem shall be notified of all court hearings,
administrative reviews, staffings, investigations, dispositions, and other
proceedings concerning the case.
Timely notice of all court hearings, administrative reviews, staffings,
investigations, dispositions, and other proceedings concerning the case shall
be provided to the guardian ad litem by the party scheduling the proceeding.
(d)
The guardian ad litem shall have the right to participate in all
proceedings through submission of written and oral reports.
(e)
Upon presentation of a copy of the order appointing the guardian ad
litem, any person or agency, including, without limitation, any hospital,
school, organization, department of health and welfare, doctor, health care
provider, mental health provider, chemical health program, psychologist,
psychiatrist, or police department, shall permit the guardian ad litem to
inspect and copy any and all records relating to the proceeding for which the
guardian ad litem is appointed, without the oral or written consent of the
child or the child’s parents.
Amended effective January 1, 1999.)
Rule 909.02 Rights and Powers as a Party
In addition to the rights and powers set forth in
subsection .01 of this rule, in every case in which a guardian ad litem is
designated, by statute, rule, or order of the court, as a party to the case,
the guardian ad litem shall have the rights and powers set forth in clauses
(a) to (d). The exercise of these
rights and powers shall not constitute the unauthorized practice of law.
(a) The
guardian ad litem shall have the right to file pleadings, motions, notices,
memoranda, briefs, and other documents, and conduct and respond to discovery,
on behalf of the child. The
guardian ad litem may exercise these rights on her or his own or may seek the
appointment of an attorney to act on her or his behalf.
(b) The guardian ad
litem shall have the right to request hearings before the court as appropriate
to the best interests of the child.
(c) The guardian ad
litem shall have the right to introduce exhibits, subpoena witnesses, conduct
direct and cross examination of witnesses, and appeal the decision of the
court.
(d) The guardian ad
litem shall have the right to fully participate in the proceedings through
oral arguments and submission of written reports.
(Amended effective January 1, 1999.)
Advisory Task Force Comments
Guardians ad litem have certain rights and powers in every
family and juvenile court case, and those rights and powers are
identified in Rule 909.01.
In addition, in those cases where a guardian ad litem is
designated as a party to the case, either by statute, rule, or order of
the court, the guardian ad litem should have certain rights and powers
beyond those rights and powers present in every case.
Following is a summary of the circumstances under which
guardians ad litem are designated as parties in family and juvenile
court cases and, therefore, endowed with the additional rights and
powers set forth in Rule
909.02.
Family Court Cases.
Pursuant to Rule 302.04(b) of these rules, a guardian ad
litem is not automatically a party to a dissolution, legal separation,
custody, or domestic abuse proceeding, but “may be designated a party
to the proceeding in the order of appointment.”
The Comment to Rule 302.04(b) provides that a non-party guardian
ad litem appointed in a family court proceeding “may only initiate and
respond to motions and make oral statements and written reports on
behalf of the child.”
A guardian ad litem appointed pursuant to the Parentage Act,
Minnesota Statutes section 257.60, “becomes a party to the action if
the child is made a party.”
Pursuant to the Comment to Rule 302.04(b), a guardian ad litem who is a
party to a paternity determination proceeding “would be entitled to
initiate and respond to motions, conduct discovery, call and
cross-examine witnesses, make oral or written arguments or reports, and
appeal on behalf of the child without the necessity of applying to
other court.”
Juvenile Court Cases.
While the Minnesota Rules of Juvenile Procedure at Rules 3.03
(juvenile delinquency) and 39.04 (child in need of protection or
services) and Minnesota Statutes section 260.155, subdivision 4,
establish that a guardian ad litem may under certain circumstances
participate in a juvenile court proceeding, neither the rules nor the
statute establish the extent of such participation or whether a
guardian ad litem may participate as a party.
In considering this issue, however, the Minnesota Supreme Court
has cited Minnesota Statutes section 260.155, subdivision 4, for the
proposition that a guardian ad litem has “standing as a party to
protect the interests of the child.”
In Re the Welfare of Solomon, 291 N.W.2d
364, 369 (Minn. 1980) (child protection and termination of parental
rights matter). The Court
has cited Minnesota Statutes section 260.155, subdivision 6, for the
proposition that the rights accorded to a guardian ad litem who is a
party to a juvenile court proceeding are identical to those accorded to
other parties, including the right “to be heard, to present evidence
material to the case, and to cross-examine witnesses appearing at the
hearing.”
Rule 910. Pre-Service Training
Requirements
Rule 910.01 Pre-Service Training Requirements for New Guardians Ad Litem
The purpose of pre-service training is to equip guardians ad litem with
the skills, techniques, knowledge, and understanding necessary to effectively
advocate for the best interests of children.
To be listed on a panel of approved guardians ad litem maintained
pursuant to Rule 903.04, each person, except those
persons who meet the criteria set forth in subsection .02
of this rule, shall satisfy the following pre-service training requirements:
(a) attend a
minimum of 40 hours of pre-service training and demonstrate a comprehension of
the topics discussed during the training;
(b) if the person
intends to serve in family court, attend an additional training course
regarding family law matters and demonstrate a comprehension of the topics
discussed during the training relating to family law matters; and
(c) if the person
intends to serve in juvenile court, attend an additional training course
regarding juvenile law matters and demonstrate a comprehension of the topics
discussed during the training relating to juvenile law matters.
(Amended
effective January 1, 1999.)
Rule 910.02 Pre-Service Training Requirements for Existing Guardians Ad Litem
To be listed on a panel of approved guardians ad litem maintained
pursuant to Rule 903.04, each person appointed to serve
as a guardian ad litem prior to the effective date of Rules 901 to 913 shall
either:
(a) satisfy
the pre-service training requirements set forth in subsection .01 of this
rule; or
(b) submit to the
program coordinator written proof sufficient to verify that the person has
undergone previous training substantially similar in nature and content to
that provided by the pre-service training requirements set forth in subsection
.01 of this rule. The person must
attend those sessions of the pre-service training for which the person is
unable to provide written proof of prior training.
The program coordinator shall identify the training sessions which the
person must attend.
(Amended
effective January 1, 1999.)
Rule 910.03 Internship Requirements
In addition to satisfying the pre-service training requirements set
forth in either subsections .01 or
.02 of this rule, whichever is applicable, during the six months
immediately following the date on which the person’s name is listed on a panel
of approved guardians ad litem, each person who intends to serve as a guardian
ad litem in juvenile court shall make a reasonable, good faith effort to
satisfy the internship requirements set forth in clauses (a) to (d), and each
person who intends to serve as a guardian ad litem in family court shall make
a reasonable, good faith effort to satisfy the internship requirements set
forth in clauses (e) and (f), or submit to the program coordinator written
proof sufficient to verify that the person has previously satisfied the
requirements.
(a) Visit a
shelter and foster home.
(b) Visit the local
social service agency and/or child protection office.
(c) With the
court’s permission, observe a variety of juvenile court proceedings,
including, but not limited to, an initial child protection hearing, a child
protection review hearing, a foster care review hearing, and an administrative
review.
(d) Intern with an
experienced guardian ad litem on at least two juvenile court cases.
(e)
Observe a variety of family court proceedings, including, but not
limited to, a temporary relief hearing, a child custody hearing, and a
domestic abuse hearing.
(f) Intern
with an experienced guardian ad litem on at least two family court cases.
(Amended
effective January 1, 1999.)
Advisory Task Force Comments
If an attorney wishes to receive continuing legal education
credits for attending guardian ad litem pre-service training and/or
continuing education courses, it shall be the sole responsibility of
that person to apply for accreditation from the State Board of
Continuing Legal Education, and the State Board of Continuing Legal
Education shall have sole discretion in determining whether
accreditation shall be accorded and, if so, to what extent.
If the guardian ad litem is a member of a profession which
requires continuing education credits, and the guardian ad litem wishes
to receive credits for attending guardian ad litem pre-service training
and/or continuing education courses, it shall be the sole
responsibility of the guardian ad litem to apply for accreditation from
the professional body responsible for approving courses of credit.
Rule 911. Continuing Education
Requirements
Once a guardian ad litem is listed on a panel of approved guardians ad
litem maintained pursuant to Rule 903.04, the guardian
ad litem may maintain that listing only by annually completing eight hours of
continuing education. The continuing
education requirement shall begin in the calendar year following the year in
which the guardian ad litem is first listed on a panel of approved guardians
ad litem and shall continue each year thereafter until such time as the
guardian ad litem is no longer listed on the panel of approved guardians ad
litem.
(Amended effective January 1, 1999.)
Rule 912. Training Curricula;
Certification of Trainers
Rule 912.01 Pre-Service Training Curriculum
The State Court Administrator, through the Office of Continuing
Education in consultation with the Advisory Task Force on the Guardian Ad
Litem System, shall develop a core curriculum to be used in the pre-service
training of guardians ad litem and guardian ad litem program coordinators.
The pre-service training curriculum should be reviewed and updated at
least every three years.
(Amended effective January 1, 1999.)
Rule 912.02 Continuing Education Curriculum
The continuing education curriculum shall include developments in
relevant guardian ad litem, family court, or juvenile court topics.
(Amended effective January 1, 1999.)
Rule 912.03 Certification of Trainers
The pre-service training and continuing education of guardians ad litem
shall be coordinated by persons certified by the State Court Administrator
through the Office of Continuing Education.
To be certified, a person shall satisfy the following qualifications.
(a) The
person shall have substantial knowledge, training, and experience regarding
the roles and responsibilities of guardians ad litem.
(b) The person
shall understand the policies, procedures, and functions of family and
juvenile court.
(c) The person
shall have substantial experience and be competent in providing technical
training to adults.
(d) The person
shall complete the pre-service training program developed by the State Court
Administrator, through the Office of Continuing Education in consultation with
the Advisory Task Force on the Guardian Ad Litem System.
(Amended
effective January 1, 1999.)
The State Court Administrator, in consultation with the Advisory Task
Force on the Guardian Ad Litem System, shall develop a brochure, the purpose
of which shall be to educate judges, attorneys, parents, case participants,
and others regarding the purpose, roles, and responsibilities of guardians ad
litem, and opportunities to serve as a guardian ad litem.
Each judicial district shall provide for distribution of the brochure
to interested persons.
(Amended effective January 1,
1999.)