Rule 110A: Standards for Guardians Ad Litem

(a)   Generally. Unless the appointing judge authorizes departure from these standards for good cause, these standards apply when the judge appoints a guardian ad litem for a child in a case under the Revised Kansas Code for Care of Children, K.S.A. 38-2201 et seq.; the Revised Kansas Juvenile Justice Code, K.S.A. 38-2301 et seq.; and the Kansas Family Law Code, K.S.A. Chapter 23. The judge must:

(1)   issue an order appointing the guardian ad litem on a form substantially in compliance with the judicial council form; and

(2)   ensure compliance with this rule.

(b)   Prerequisite and Continuing Education.

(1)   Requirements.

(A)   Number of Hours; Timeframe. As a prerequisite to appointment, a guardian ad litem must complete at least 6 hours of education, including 1 hour of professional responsibility. An appointed guardian ad litem also must participate in continuing education consisting of at least 6 hours per year.

(B)   Areas of Education. Areas of education should include, but are not limited to:

dynamics of abuse and neglect;

roles and responsibilities;

cultural awareness;

communication skills, including communication with children;

information gathering and investigatory techniques;

advocacy skills;

child development;

mental health issues;

permanency and the law;

community resources;

professional responsibility;

special education law;

substance abuse issues;

school law; and

the revised code for care of children.

(2)   Waiver of Prerequisite. The appointing judge may waive the prerequisite education when necessary to make an emergency temporary appointment. The educational requirements must be completed within 6 months after appointment.

(3)   Continuing Education Requirements; Judicial Approval. If approved by the Continuing Legal Education Board, the education hours required by paragraph (1) also can be counted to satisfy Supreme Court Rule 804’s continuing legal education requirements. These standards do not modify the minimum total hours annually required under that rule. The appointing judge may approve prerequisite education and continuing education hours not otherwise approved by the Continuing Legal Education Board.

(4)   Recordkeeping. Each guardian ad litem must maintain a record of the guardian’s participation in prerequisite and continuing education programs. Upon request of the appointing judge, the guardian must provide evidence of compliance with this subsection.

(c)   Guardian Ad Litem Duties and Responsibilities. A guardian ad litem must comply with the following standards:         
 
(1)   Conducting an Independent Investigation. A guardian ad litem must conduct an independent investigation and review all relevant documents and records, including those of social service agencies, police, courts, physicians, mental health practitioners, and schools. Interviews—either in person or by telephone—of the child, parents, social workers, relatives, school personnel, court-appointed special advocates (CASAs), caregivers, and others having knowledge of the facts are recommended. Continuing investigation and ongoing contact with the child are mandatory.

(2)   Determining the Best Interests of the Child. A guardian ad litem must determine the best interests of the child by considering such factors as:

the child’s age and sense of time;

the child’s level of maturity;

the child’s culture and ethnicity;

degree of the child’s attachment to family members, including siblings;

continuity;

consistency;

permanency;

the child’s sense of belonging and identity; and

results of the investigation.

(3)   Representing in Court. A guardian ad litem must:

(A)   file appropriate pleadings and other papers on the child’s behalf;

(B)   represent the best interests of the child at all hearings;

(C)   present all relevant facts, including the child’s position;

(D)   submit the results of the guardian’s independent investigation and the guardian’s recommendations regarding the child’s best interests; and

(E)   vigorously advocate for the child’s best interests by:

(i)   calling, examining, and cross-examining witnesses;

(ii)   submitting and responding to other evidence; and

(iii)   making oral and written arguments based on the evidence that has been or is expected to be presented.

(4)   Explaining to the Child. A guardian ad litem must explain the court proceedings and the guardian’s role in terms the child can understand.

(5)   Making Recommendations for Services. A guardian ad litem must recommend appropriate services for the child and the child’s family.

(6)   Monitoring. A guardian ad litem must monitor implementation of service plans and court orders.

(d)   When Recommendation Conflicts with Child’s Wishes. If the child disagrees with the guardian ad litem’s recommendation, the guardian must inform the court of the disagreement. The court may, for good cause, appoint an attorney to represent the child’s expressed wishes. If the court appoints an attorney for the child, that individual serves in addition to the guardian ad litem. The attorney must allow the child and the guardian to communicate with one another but may require the communications to occur in the attorney’s presence.

(e)   Participation Limited by Rules of Professional Conduct. An attorney in a proceeding in which the attorney serves as guardian ad litem may submit reports and recommendations to the court and testify only as permitted by Kansas Rule of Professional Conduct 3.7(a).

[History: New rule adopted effective July 1, 2012.]