A child’s best interests are not the same as what a child wants

The role of a guardian ad litem is not for the faint of heart. The attorney, by putting themselves into that important and often critical role, takes on the responsibility of making recommendations that will significantly affect the direction of a child’s future. I, myself, have never been guardian ad litem, however as a family law attorney there are often guardian ad litems appointed in the types of cases that I am involved in.

A proposed bill may lead way to fundamentally changing the role of a guardian ad litem in correlation with the children that they interact with ages 12 and older. Instead of advocating for what is in the child’s best interests, the guardian ad litem would instead advocate for the outcome the children desire.

While the phrase a “child’s best interests” may seem straightforward enough, it has been defined specifically within Colorado law and a child’s desires as to parenting time are presently taken into consideration pursuant to that law.

Specifically, the best interests of the child include “The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule.”

The guardian ad litem, advocates for the child’s best interests, which already includes the desires of the child. Are there instances of a 12-year-old child being sufficiently mature enough to have their wishes taken into consideration? Absolutely. Are there children that at age 12 because of the current court proceedings they find themselves in, not at any fault of their own, that perhaps cannot and should not be forced to make a choice as to what their time with their parents will look like? Absolutely.

Many, if thinking back on their maturity level as a 12-year-old, would hesitate before putting important life-altering decisions on the shoulders of their younger selves.

There are other subtle differences of an attorney in the role of guardian ad litem that differ from the traditional attorney role.

Because of this unique relationship, an attorney’s obligation not to reveal confidential information provided by the child does not apply if the information must be revealed to ensure the child’s best interests. A determination by the GAL or the child’s legal representative of a child’s best interests must include consultation with the child in a developmentally appropriate manner and consideration of the child’s position regarding the disposition of the matter before the court. A GAL or a child’s legal representative must also explain to the child the limitations on confidentiality.

A consequence of the proposed change in the guardian ad litem role will likely change the current limitations on confidentiality as there would be an attorney-client relationship between the child and the guardian ad litem.

The distinction between what a child wants and what is in a child’s best interests is huge.

These are important considerations that lawmakers must know and carefully discuss before fundamentally changing the current role of the guardian ad litem. Ultimately this proposed bill will result in a drastic change by mandating that the attorney advocate for what a child wants rather than what may be in the child’s best interests.