7.11Appointment of Attorney for the Child

Where a conflict exists between a lawyer-guardian ad litem’s determination of a child’s best interests and what the child identifies as his or her interests, the lawyer-guardian ad litem must communicate the child’s position to the court. MCL 712A.17d(2). The court may appoint an attorney to represent the child if it deems the attorney appointment appropriate given the child’s age and maturity, and nature of the discrepancy between the child’s stated interests and the guardian ad litem’s determination of the child’s best interests.¹ Id.; MCR 3.915(B)(2)(b). See Section 7.10 for additional information on a child’s lawyer-guardian ad litem appointment.

Note: An attorney’s appearance in a child protective proceeding is governed by MCR 2.117(B). MCR 3.915(C). See SCAO form Appearance of Attorney/Guardian Ad Litem/Lawyer-Guardian Ad Litem.

An attorney appointed to represent a child under MCL 712A.2(b) means:

“an attorney serving as the child’s legal advocate in a traditional attorney-client relationship with the child, as governed by the Michigan Rules of Professional Conduct. An attorney defined under this subdivision owes the same duties of undivided loyalty, confidentiality, and zealous representation of the child’s expressed wishes as the attorney would to an adult client. For the purpose of a notice required under these sections, attorney includes a child’s lawyer-guardian ad litem.” MCL 712A.13a(1)(c).

An attorney appointed to represent the child’s expressed wishes is in addition to the child’s appointed lawyer-guardian ad litem. MCL 712A.17d(2). The court-appointed attorney must serve until he or she is discharged by the court. MCL 712A.17c(9); MCR 3.915(D)(2).

If an attorney is appointed to represent a party in a child protective proceeding, and after a determination of the ability to pay, the court may enter an order assessing costs of the representation to “the party or the person responsible for that party’s support, or against the money allocated from marriage license fees for family counseling services under . . . MCL 551.103.”² MCL 712A.17c(8); see also MCR 3.915(E). A court’s order assessing costs may be enforced through contempt proceedings. MCL 712A.17c(8). Appointment of Guardians Ad Litem (GAL)

If the court finds that the welfare of the child requires it, the court may appoint a guardian ad litem to assist the court in determining the child’s best interests.³ MCL 712A.17c(10); MCR 3.916(A). A guardian ad litem does not need to be an attorney. MCL 712A.13a(1)(f).

Note: Similar to a volunteer Court-Appointed Special Advocate (CASA), a guardian ad litem may be appointed to investigate a child’s circumstances and make recommendations to the court regarding the child’s best interests. See Section 7.12 for additional information on CASAs.

Upon appointment, the guardian ad litem must file a written appearance with the court. MCR 3.916(B). The appearance must include “a statement regarding the existence of any interest that the guardian ad litem holds in relation to the [child], the [child’s] family, or any other person in the proceeding before the court or in other matters.” MCR 3.916(B). See SCAO form JC 07, Appearance of Attorney/Guardian Ad Litem/Lawyer-Guardian Ad Litem.

After an appearance is filed, the guardian ad litem is entitled to “copies of all petitions, motions, and orders filed or entered,” and to consult with the child’s attorney and/or lawyer-guardian ad litem. MCR 3.916(C).

A.Governmental Immunity

“A guardian ad litem is immune from civil liability for an injury to a person or damage to property if he or she is acting within the scope of his or her authority as guardian ad litem.” MCL 691.1407(6).

B.Assessment of Costs

“In a child protective proceeding, the court may assess the cost of providing a guardian ad litem against the party or a person responsible for the support of the party after a determination of ability to pay, and may enforce the order of reimbursement as provided by law.”⁴ MCR 3.916(D). Where the child is a ward of the state and a guardian ad litem is required in order for the case to proceed, the DHHS “is the responsible party for payment of [the guardian ad litem’s] fees and expenses.” Doe v Boyle, 312 Mich App 333, 348 (2015) (noting that “[a]lthough[, in this case, the guardian ad litem] was appointed in a civil case, rather than a child-protective or delinquency proceeding, . . . [since the child] was a ward of the state and required a guardian ad litem in order for the case to proceed[,] . . . [i]n this case, the person responsible for [the child] was the state[]”).