Today we’re going to be talking about guardian ad litem’s in a West Virginia divorce. So a guardian ad litem is an attorney who is appointed to represent someone who does not have the legal capacity to act on their own behalf. In West Virginia, that generally falls into one of several categories. The most common thing that you see in West Virginia divorce is a person, a child generally, oftentimes can be appointed a guardian ad litem. It’s really up to the judge as to whether one is going to be appointed. Years ago, what would happen is the guardian ad litem in front of many judges would automatically be appointed. That doesn’t necessarily happen so much anymore unless there are extraordinary circumstances.
These guardians are appointed to act in the best interest of the child. Now, that doesn’t necessarily mean that they’re going to act in a way that is contrary to or consistent with the child’s preference or what the child wants. It’s just a person who is there to act and represent the person as far as their best interest goes. For example, let’s say that the child wants to do something that’s contrary to their best interest. The guardian ad litem could make recommendations to the court about what the guardian ad litem thinks is in the child’s best interest. That’s one category for guardian ad litem’s and that’s really the most common way that you see it in family court. Other instances in which you sometimes see guardian ad litems in the family courts in West Virginia do exist. One instance is if a person is in prison. I have seen guardian ad litem’s assigned for people who are serving some time in prison.
Let’s say somebody files for divorce and the other person is incarcerated. Well, the court can appoint that person a guardian ad litem to act on behalf of the person who is incarcerated. Another category that I see sometimes under West Virginia law is a person who does not have the mental capacity to represent themselves. Let’s say you’ve got a person who is legally incompetent. Their state of mind is such that they cannot make decisions on their own behalf. In this case, sometimes a court will appoint a guardian ad litem in that instance. Finally and this is fairly rare, but have seen this situation where a member of the military cannot be found or they in certain instances involving military members sometimes a court will appoint a guardian ad litem to represent the person who is in the military. This is a broad overview about the role that guardian ad litem’s sometimes play in a West Virginia divorce.
