The Constitution (due process), statutes, the common law, and the Rules of the Supreme Court of Virginia all play a role in when a GAL may, must, or should be appointed. Guardians ad litem (GALs) are appointed to represent the interests of those the law deems incapable of doing so for themselves, either adults or children. Code § 8.01-9 states the general rule in civil cases that a GAL must be appointed for “persons under a disability.” The most common reasons GALs are appointed for adults in such proceedings are due to incarceration. Trial courts often appoint GALs for any incarcerated person, but only those actively serving time on a felony charge are “persons under a disability.” Code § 8.01-2(6)(a); Code § 16.1-266(F) (discretionary in custody proceedings). For children, infancy is such a disability. Code § 8.01-2(6)(b).
While a minor suffers from the disability of infancy, this does not necessarily require the minor’s participation in a proceeding through a GAL. A GAL is not required in a custody proceeding between parents. But why are appointments GALs not required when the minors have interests in the outcome of the litigation and are suffering from a disability rendering him or her incapable of adequately representing his or her own interests?
Historically, infants in civil proceedings, except custody and divorce, were joined as parties represented by a GAL. See e.g. Caperton v. Gregory, 52 Va. 505 (1854); Kent v. Lindsey, 182 Va. 775, 779 (In a custody case subsequent to a divorce, “…the court appointed a guardian ad litem who file an answer and attended the subsequent proceedings.”). As to custody proceedings between parents, children were treated as property (res). Amy Halbrook, CUSTODY: KIDS, COUNSEL AND THE CONSTITUTION, 12:2 Duke J. Const. L. & Pub. Pol. p. 182. In modern practice, a clearer conceptualization of the law is to regard children as parties not joined to the action. Parham v. J.R., 442 U.S. 584, 630, 1979 (“parental rights are limited by the legitimate rights and interests of their children”). While the Court of Appeals has stated that children are “technically not a party” but a ‘”in a very real sense the ward of the court,”‘ once a finding is made that the parents are not adequately representing the child’s interest, then a GAL is appointed as an “independent party.” Compare Verrochio v. Verrocchio, 16 Va. App. 314, 318 (1993) (child not technically a party) with Stanley v. Fairfax Co. Dep’t of Soc. Servs., 10 Va. App. 596, 601 (1990) (Guardian litem as “independent party”).
Children have an interest in the outcome of litigation regarding their care and custody. Rule 3:12 (“…the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may… as a practical matter impair or impede the person’s ability to protect that interest…”). Appointing a GAL is not necessary in every in every custody proceeding as the law recognizes that often the child’s substantive rights and interests are fairly represented by his or her parents, despite the litigation between them.; see Code § 16.1-266(F); Yopp v. Hodges, 43 Va. App. 427 (2004); cf. Rule 3:12; Howell v. McAuliffe, 292 Va. 320, 337 (2016) (“A court can choose to proceed without a necessary party if (1) it is ‘practically impossible’ to join a necessary party and the missing party is represented by other parties who have the same interests…”).
If a child’s interests are adequately represented, then the child should not be joined by appointment a GAL, especially where each parent is represented by counsel. Code § 16.1-266. In either case, appointment is discretionary. Id. On the other hand, if the parents are not adequately representing the child’s interests, then the common law, Code and Rules require joinder by the appointment of a GAL. Id., Rule 3.12 (joinder); see e.g. Yopp, 43 Va. App. at 436 n. 5; Verrocchio, 16 Va. App. at 322 (recognizing inherent authority of circuit court to appoint GAL when child’s best interests “are not adequately protected by the parties…”). Note that service of process on an infant over fourteen years of age is unnecessary after the appearance of his or her GAL. Caperton, 52 Va. at 515 (explaining that the practice of serving minors fourteen years of age or older under the common law was to ensure their interests were protected but that such is not necessary where a GAL has made an appearance); Parker v. McCoy, 51 Va. 594, 606 (1854) (“it can hardly be supposed the legislature intended that process should be served upon infants.”)
In proceedings to determine parentage, the legislature determined that the parent(s) do not adequately represent the child’s interest and, for the minor to be bound by a judgment, he must be made a party and appointed a GAL. Code § 20-49.2; Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614 (1989). This makes sense, as determining whether one of the alleged parents is a parent at all defeats the rationale that represented parents at odds may adequately represent the child’s interests.
Put simply, the question under the law as to whether or not a GAL should be appointed for a child in a custody dispute between parents is whether or not the child’s interest is adequately represented by his or her parents. If a child’s interests are not adequately represented, then a GAL should be appointed. Whether to make such an appointment is a fact specific determination to be made and exercised at the discretion of the factfinder.