7.10Lawyer-Guardian Ad Litem (L-GAL)

During child protective proceedings, the court must appoint a lawyer-guardian ad litem¹ to represent the child at every hearing (including preliminary hearings), and the child may not waive the lawyer-guardian ad litem’s assistance.² MCL 712A.17c(7); MCL 722.630; MCR 3.915(B)(2)(a).³

A lawyer-guardian ad litem is appointed to represent the interests of a child. MCL 712A.13a(1)(g); MCL 712A.17d(1); MCL 722.630. The lawyer-guardian ad litem’s powers and duties include:

(1) Respecting the attorney-client privilege.

(2) Serving as independent representation for the child’s best interests.

(3) Entitlement to fully and actively participate in the litigation.

(4) Access to all relevant information regarding the child.

(5) Conducting his or her own independent investigation, including interviewing the child, social workers, family members, and anyone else who may be necessary.

(6) Reviewing relevant reports and any other relevant information.

(7) Mandatory review of the agency case file⁴ before disposition and before the parental termination hearing.

(8) Mandatory review of all updated material as it is provided to the court and parties.⁵

(9) Meeting with or observing the child⁶ and assessing his or her needs and wishes in regards to the representation and issues in the case at the following times:

(a) Before the pretrial hearing.

(b) Before the initial disposition (if held more than 91 days after the petition has been authorized).

(c) Before a dispositional review hearing.

(d) Before a permanency planning hearing.

(e) Before a posttermination review hearing.

(f) At least once during the pending of a supplemental petition.

(g) At other times as ordered by the court. Unless directed by the court, adjourned or continued hearings do not require additional visits.

(10) Explaining to the child, considering the child’s level of understanding, the role of a child’s lawyer-guardian ad litem.

(11) Filing all necessary pleadings and papers.

(12) Independently calling witnesses on the child’s behalf.

(13) Attending all hearings or substituting representation on the child’s behalf with court approval.

(14) Making a determination regarding the child’s best interests, and advocating for those best interests.

Note: Although relevant to the best-interest determination, the lawyer-guardian ad litem must weigh the child’s wishes against the child’s competence and maturity, and the best-interest determination may not reflect the child’s wishes.

(15) Informing the court of the child’s wishes and preferences in a manner consistent with the attorney-client privilege.

(16) Monitoring the implementation of case plans and court orders, and determining whether the court-ordered services are being timely provided and accomplishing their intended purpose.

Note: It is the lawyer-guardian ad litem’s duty to inform the court if the services are not being provided in a timely manner, the family is not taking advantage of the services, or the services are not accomplishing their intended purpose.

(17) Consistent with the rules of professional responsibility, identifying common interests among the parties and, to the extent possible, promoting a cooperative resolution of the matter through consultation with the child’s parents, foster care provider, guardian, and caseworker.

(18) Requesting the court’s authorization to pursue any additional issues on the child’s behalf that do not arise specifically from the court appointment.

(19) Participating in early childhood, child, and adolescent development.

(20) Participating in trauma-informed training if the State Court Administrative Office offers it. MCL 712A.17d(1).⁷ 

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

The court must inquire at each hearing whether the lawyer-guardian ad litem has met or had contact with the child. MCR 3.915(B)(2)(a). If the lawyer-guardian has not met or had contact with the child, the lawyer-guardian ad litem must state on the record the reasons for failing to do so. Id.

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 court 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. Id.; MCR 3.915(B)(2)(b). See Section 7.11 for additional information on a child’s attorney appointment.

Note: An attorney appointed to represent the child’s identified interests serves in addition to the child’s appointed lawyer-guardian ad litem. MCL 712A.17d(2).

A court-appointed lawyer-guardian ad litem must serve until he or she is discharged by the court. MCL 712A.17c(9); MCR 3.915(D)(2). The court may permit another attorney to temporarily substitute for the child’s lawyer-guardian ad litem if it prevents adjournment of a hearing or for other good cause. MCR 3.915(D)(2). However, a substitute attorney must be familiar with the case and, for hearings other than a preliminary hearing or emergency removal hearing, must review the agency case file⁸ and consult with the foster parents and caseworker before the hearing (unless the child’s lawyer-guardian ad litem has already done so and communicated the information to the substitute attorney). Id. The court must inquire on the record whether the attorneys have followed these requirements. Id.

When a child has been committed to the Michigan Children’s Institute (MCI), the child’s attorney and/or lawyer-guardian ad litem and the MCI superintendent must consult with one another if the child’s attorney and /or lawyer-guardian ad litem has an objection or concern regarding the child’s placement or permanency plan. MCL 400.204(2).

Note: If a lawyer-guardian ad litem was appointed in a child protective proceeding, the court may not discharge the lawyer-guardian ad litem while the child is “subject to the jurisdiction, control, or supervision of the court, or of the [MCI] or other agency, unless the court discharges the lawyer-guardian ad litem for good cause shown on the record.” MCL 712A.17c(9). Once the court discharges a lawyer-guardian ad litem for good cause, the court must immediately appoint another lawyer-guardian ad litem to represent the child if the child remains under the court’s or MCI’s or another agency’s jurisdiction, control, or supervision. Id.

A.Appointment of Lawyer-Guardian Ad Litem Under the Safe Delivery of Newborns Law

The court may appoint a lawyer-guardian ad litem to represent a newborn under the Safe Delivery of Newborns Law, MCL 712.1 et seq. A lawyer-guardian ad litem appointed under the Safe Delivery of Newborns Law is “an attorney appointed under [MCL 712.2]. . . . [who] represents the newborn, and has the powers and duties, as set forth in [MCL 712A.17d].” MCL 712.1(2)(j). See Section 3.1(D) for information on the custody of a child under the Safe Delivery of Newborns Law, Section 4.2(D) for the court’s jurisdiction over a newborn child surrendered to an emergency service provider, and Section 8.14 for information on the placement of a child under the Safe Delivery of Newborns Law.

Note: According to MCL 712.1(2)(k), a newborn is “a child who a physician reasonably believes to be not more than 72 hours old.”

B.Effective Assistance of Counsel

A child is entitled to the effective assistance of counsel. To constitute effective assistance of counsel, a child’s attorney’s conduct must comply with “applicable statutes, court rules, rules of professional conduct, and any logically relevant case law.” In re AMB, 248 Mich App 144, 226 (2001). A party may “rais[e] concerns with the trial court over an LGAL’s conduct or compliance with statutory requirements; a party is simply prohibited from asserting on behalf of the child that the LGAL provided constitutionally-defective representation that resulted in prejudice to the child.” In re L S Knipp, ___ Mich App ___, ___ (2024).

C.Lawyer-Guardian Ad Litem as Witness

A lawyer-guardian ad litem cannot be called as a witness to testify in matters that relate to a case to which he or she is appointed. MCL 712A.17d(3). In addition, a lawyer-guardian ad litem’s case files are not discoverable. Id.

D.Governmental Immunity

“LGALs are entitled to immunity under MCL 691.1407(6).” Farris v McKaig, 324 Mich App 349, 352 (2018) (concluding that “the Legislature intended for LGALs to be immune from civil liability under MCL 691.1407(6),” “which grants a guardian ad litem (GAL) immunity from civil liability when acting within the scope of the GAL’s authority,” “when acting in their role as an LGAL.”).

E.Assessment of Costs

If a lawyer-guardian ad litem is appointed 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.”⁹ MCL 712A.17c(8); MCR 3.915(E).

A court’s order assessing costs may be enforced through contempt proceedings. MCL 712A.17c(8).