Last edited: November 2005
Summary and Analysis
Under the Code of Alabama, 1975, appointment of an attorney is mandatory in every case involving an abused or neglected child which results in a judicial proceeding. Ala. Code § 26-14-11. This attorney is charged with representing the “rights, interests, welfare, and well-being of the child” and also serves as a guardian ad litem. Id. The Code mandates that “[i]t shall be the duty of the appointed counsel… to represent and assist the juvenile.” Ala. Code § 15-12-21. Although attorneys may take into account the child’s wishes when assisting the child, nothing in the Code indicates that assisting the child must include assisting the child with asserting his or her wishes, per se. Representing the child’s “wishes,” therefore, is not a duty of the attorney under Alabama law. Regarding adoption, the typical uncontested adoption does not require that a guardian ad litem be appointed for the adoptee; in the event of a contested adoption, however, an attorney shall be appointed as guardian ad litem. Ala. Code § 26-10A-22. The court, on its own motion, may appoint a guardian ad litem for a minor adoptee in uncontested adoption cases.
Although the definition of guardian ad litem in § 12-15-1(12) of the Code is stated to apply only to Title 12, Chapter 15 (Juvenile Proceedings), the term occurs also in Title 15, Chapter 12 and Title 26, Chapters 10A and 14, where it appears to retain the same definition. However, a court appointed special advocate (CASA) in the few counties using these advocates may be appointed in addition to the attorney at the discretion of the court.
Whenever legal custody of a child is vested in someone other than his or her parents, after due notice to the parents or other persons, and after a hearing, the court may order that the parent or other legally obligated person pay a reasonable sum that will cover, in whole or in part, the support and treatment of the child – including support, treatment, costs, and legal fees. Ala. Code § 12-15-9. Guardians ad litem appointed by courts are generally paid from the Fair Trial Tax Fund. Ala. Code § 12-19-252. The rates to be paid guardians ad litem are found in § 15-12-21(d); the section was amended in 1999 by Act 99-427 (the “Investment in Justice Act of 1999”) to increase the rates for attorneys appointed to represent indigent clients.
Alabama has recently, through the Court Improvement Project, developed the “Guardian ad Litem Certification Program,” in which guardians ad litem must take a 6-hour initial certification course to be placed on an appointment list; once on the list, attorneys are required to obtain two additional hours of continuing legal education on a guardian ad litem-related topic. Alabama developed this program in order to comply with key provisions of the federal Child Abuse Prevention and Treatment Act (CAPTA) of 1974, requiring that states certify to the Department of Health and Human Services that guardians ad litem are trained as to their role. As of March 28, 2005, 936 attorneys were on this list, with additional certification trainings planned for the fall of 2005.
Alabama Code § 12-15-1 (Definitions)
When used in this chapter
. . .
(12) GUARDIAN AD LITEM [means a] licensed attorney appointed by a court to defend or represent a child in any action to which the child may be a party.
Alabama Code § 12-15-8 (Appointment by courts of guardians ad litem or guardians of the person for children)
(a) The court, at any stage of a proceeding under this chapter, may appoint a guardian ad litem for a child who is a party to the proceeding if he has no parent or guardian or custodian appearing on his behalf or their interests conflict with those of the child. A party to the proceeding or his employee or representative shall not be so appointed.
. . .
Alabama Code § 12-15-63 (Notification of children, parents, guardians, etc., of right to counsel; appointment of counsel by court)
. . .
(b) … The court shall also appoint counsel for the child in dependency cases where there is an adverse interest between parent and child or where the parent is an unmarried minor or is married, widowed, widowered or divorced and under the age of 18 years or counsel is otherwise required in the interests of justice.
(h)(4) The juvenile court may appoint a guardian ad litem for a multiple needs child.
. . .
Alabama Code § 15-12-21 (Appointment and compensation of counsel – Trial court)
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(b) If it appears to the trial court in a delinquency case, need of supervision case, or other judicial proceeding in which a juvenile is a party, that the juvenile is entitled to counsel and that the juvenile is not able financially or otherwise to obtain the assistance of counsel or that appointed counsel is otherwise required by law, the court shall appoint counsel to represent and assist the juvenile or act in the capacity of guardian ad litem for the juvenile. It shall be the duty of the appointed counsel, as an officer of the court and as a member of the bar, to represent and assist the juvenile to the best of his or her ability.
Alabama Code § 26-14-11 (Appointment of attorney to represent child)
In every case involving an abused or neglected child which results in a judicial proceeding, an attorney shall be appointed to represent the child in such proceedings. Such attorney will represent the rights, interests, welfare and well-being of the child, and serve as guardian ad litem for said child.
Alabama Code §
12-15-9 (Issuance of order to
parents, etc., for payment for support, treatment, etc., of children in custody
of persons other than parents generally; proceedings upon failure of parents,
etc., to pay amounts directed.)
Whenever legal custody of a child is vested in someone other than his parents, after due notice to the parents or other persons legally obligated to care for and support the child and after a hearing, the court may order that the parent or other legally obligated person shall pay in such manner as the court may direct a reasonable sum that will cover in whole or in part the support and treatment of the child after the order is entered and including support, treatment, costs and legal fees from the commencement of the proceeding.
If the parent or other legally obligated person willfully fails or refuses to pay such sum, the court may proceed against him for contempt or the order may be filed and shall constitute a civil judgment.
Alabama Code § 12-15-11 (Issuance of order to parents, etc., for payment of court costs, attorney's fees and expenses for support, treatment, etc., of children; manner of payment, etc.; proceedings upon failure of parents, etc., to pay amounts directed.)
If, after due notice to the parents or other persons legally obligated to care for and support the child and after a hearing, the court finds that they are financially able to pay all or part of the court costs, as provided by law, attorney fees and expenses with respect to examination, treatment, care or support of the child incurred in carrying out the provisions of this chapter, the court shall order them to pay the same and may prescribe the manner of payment. Unless otherwise ordered, payment shall be made to the clerk of the court for remittance to those to whom compensation is due. If the child shall have an estate in the hands of a guardian or trustee, such guardian or trustee may be required to pay in a like manner. If the parent or other legally obligated person willfully fails or refuses to pay such sum, the court may proceed against him for contempt or the order may be filed and shall constitute a civil judgment.
Alabama Code § 12-19-252 (Annual appropriation from fund for payment of expenses of indigent defense generally; annual appropriation from State General Fund; payment of share of cost of maintaining public defender offices by counties.)
There is hereby appropriated from the Fair Trial Tax Fund, annually, such amount as may be necessary to pay the fees of counsel, court reporters, clerks, registers and such other necessary expenses of indigent defense as are provided by law.
There is also hereby appropriated from the Fair Trial Tax Fund, annually, such amount not exceeding $50,000.00 as may be necessary to pay the quarterly withdrawals of the State Comptroller for the expenses of administering such indigent defense.
In addition thereto, there is also appropriated annually out of
the General Fund in the State Treasury a sum equal to the amount by which the
cost of such necessary expenses of indigent defense, as provided by law,
exceeds the amount available for such purpose in the Fair Trial Tax Fund.
If the county maintains a public defender, there shall be paid a reasonable share of the cost of maintaining such office, the amount appropriated for such purpose to be prorated to the several counties maintaining public defender's offices on the basis of the case load of the respective public defender offices.
Alabama Code § 15-12-21 (Appointment and compensation of counsel – Trial court.)
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(d) Counsel appointed in cases described in subsections (a), (b), and (c), including cases tried de novo in circuit court on appeal from a juvenile proceeding, shall be entitled to receive for their services a fee to be approved by the trial court. The amount of the fee shall be based on the number of hours spent by the attorney in working on the case and shall be computed at the rate of fifty dollars ($50) per hour for time expended in court and thirty dollars ($30) per hour for time reasonably expended out of court in the preparation of the case. Effective October 1, 2000, the amount of the fee shall be based on the number of hours spent by the attorney in working on the case and shall be computed at the rate of sixty dollars ($60) per hour for time expended in court and forty dollars ($40) per hour for time reasonably expended out of court in the preparation of the case. The total fees paid to any one attorney in any one case, from the time of appointment through the trial of the case, including motions for new trial, shall not exceed the following:
Notwithstanding the above, the court for good cause shown may approve an attorney's fee in excess of the maximum amount allowed. Counsel shall also be entitled to be reimbursed for any expenses reasonably incurred in the defense of his or her client, to be approved in advance by the trial court. Preapproved expert fees shall be billed at the time the court is notified that all work by the expert has been completed, and shall be paid forthwith. Once an expert has been paid for services on a particular case, that expert shall not be allowed to receive further payment on the case. Retrials of any case shall be considered a new case.
(e) Within a reasonable time after the conclusion of the trial or ruling on a motion for a new trial or after an acquittal or other judgment disposing of the case, counsel shall submit to the trial court a bill for services rendered, not to exceed the amount provided in subsection (d). If counsel has submitted a bill in excess of the amount allowed in subsection (d), a sworn affidavit shall be attached to the bill stating the basis of the claim of the counsel for additional money, and setting out the good cause required by subsection (d). The bill, after approval by the trial court, shall be submitted by the clerk of the court to the state, Comptroller for audit and, if approved by the Comptroller, shall be forwarded to the State Treasurer for payment.
Moody v. Nagle
The recommendation of the guardian ad litem has no binding effect on the trial court; the guardian ad litem is entitled to argue his client's case to the court as is any other attorney in the case, but he is not delegated the authority of the court.
G.C. v. G.D.
The authority of a guardian ad litem to make a recommendation as to custody, and the trial court’s ability to consider that recommendation, are inherent in the definition of a guardian ad litem (citing § 12-15-1(8)(a guardian ad litem is “[a] licensed lawyer appointed by the court to defend or represent a child in any action to which such a child may be a party”) – now § 12-15-1(12)).
The court held that “The guardian ad litem correctly observes that he is an officer of the court and is entitled to argue his client's case as any other attorney involved in the case.”
Burkett v. State
Although § 26-14-11, providing for appointment of guardian ad litem for child, appears to have carte blanche application to all judicial proceedings involving an abused child, it is directed primarily at protecting the interests of the child in a civil proceeding instituted against the child or in those proceedings attendant to a criminal prosecution for child abuse where interests of the child conflict with those of the original guardian and/or cannot be adequately represented or protected by the state. Such a conclusion gains support from the nature of the chapter in which the above section appears and the expressed purpose stated therein by the legislature.
Alabama Rules of Civil Procedure, Rule 17 (Parties Plaintiff and defendant, capacity)
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(c) Minors or Incompetent Persons. Whenever a minor has a representative, such as a general guardian or like fiduciary, the representative may sue in the name of the minor. Whenever an incompetent person has a representative such as a general guardian or a like fiduciary, the representative may sue or defend in the name of the incompetent person. If a minor or an incompetent person does not have a duly appointed representative, that person may sue by that person's next friend. The court shall appoint a guardian ad litem (1) for a minor defendant, or (2) for an incompetent person not otherwise represented in an action and may make any other orders it deems proper for the protection of the minor or incompetent person. When the interest of an infant unborn or unconceived is before the court, the court may appoint a guardian ad litem for such interest. Moreover, if a case occurs not provided for in these rules in which a minor is or should be made a party defendant, or if service attempted upon any minor is incomplete under these rules, the court may direct further process to bring the minor into court or appoint a guardian ad litem for the minor without service upon the minor or upon anyone for the minor.
(d) Guardian Ad Litem; How Chosen. Whenever a guardian ad litem shall be necessary, the court in which the action is pending shall appoint to serve in that capacity some person who is qualified to represent the minor or incompetent person in the capacity of an attorney or solicitor, and must not select or appoint any person who is related, either by blood or marriage within the fourth degree, to the plaintiff or the plaintiff's attorney, or to the judge or clerk of the court, or who is in any manner connected with such plaintiff or such plaintiff's attorney, or who has been suggested, nominated, or recommended by the plaintiff or the plaintiff's attorney or any person for the plaintiff. If the guardian ad litem is to be appointed for a minor fourteen (14) years of age or over, such minor may, within thirty (30) days after perfection of service upon the minor in such cause, have the minor's choice of a guardian ad litem to represent the minor in said cause certified by an officer authorized to take acknowledgments, but if such minor fails to nominate a guardian ad litem within the thirty- (30-) day period or before any hearing set in the action, whichever is earlier, the court shall appoint a guardian ad litem as before provided. In all cases in which a guardian ad litem is required, the court must ascertain a reasonable fee or compensation to be allowed and paid to such guardian ad litem for services rendered in such cause, to be taxed as a part of the costs in such action, and which is to be paid when collected as other costs in the action, to such guardian ad litem.
Rules of Juvenile Procedure, Rule 11
(Rights of the Child)
(A) Rights of the Child When Taken Into Custody. When the child is taken into custody, the person taking the child into custody must inform the child of the following:
(1) The reason for the child's being taken into custody;
(2) That if the child's counsel, parent, or guardian is not present, then the child has the right to communicate with them, and that, if necessary, reasonable means will be provided for the child to do so.
(B) Rights of the Child Before Being Questioned While in Custody. Before the child is questioned about anything concerning the charge on which the child was arrested, the person asking the questions must inform the child of the following rights:
(1) That the child has the right to counsel;
(2) That if the child is unable to pay a lawyer and if the child's parents or guardian have not provided a lawyer, one can be provided;
(3) That the child is not required to say anything and that anything the child says may be used against the child;
(4) That if the child's counsel, parent, or guardian is not present, then the child has the right to communicate with them, and that, if necessary, reasonable means will be provided for the child to do so.
(F) Additional Rights of the Child.
(1) The child has a right to be represented by counsel at all stages of the proceeding.
(a) In any proceeding in which there is a reasonable likelihood
that the child may be committed to an institution in which the child's freedom
may be curtailed, and in which proceeding counsel has not been retained,
counsel shall be appointed for the child.
(b) In all other proceedings, the court may appoint counsel in any case upon request or when it deems such appointment to be in the interest of justice.
(2) The child, through counsel, has the right to cross-examine
(3) The child has the right to confront all witnesses against the child unless the court finds that such confrontation would not be in the best interests of the child.
(4) The child shall be furnished a transcript on appeal. If the child or the child's parents cannot afford a transcript, the court shall order that the transcript be paid for out of funds set aside for this purpose.
Alabama Rules of Juvenile Procedure, Rule 22 (Right to Counsel)
counsel at all stages of the proceedings shall include the right to counsel in
Alabama Rules of Professional Conduct, Rule 1.14 (Client under a disability)
(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired… because of minority… the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) A lawyer may seek the appointment of a guardian or take other protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest.
Local Contact Information
Bob Maddox, Esq.
Alabama Administrative Office of Courts
300 Dexter Avenue
Montgomery, AL 36104
Telephone: (334) 954-5032
Fax: (334) 954-5200
Additional Resources and Links
Office of Courts’ website: www.alacourt.gov.
Information concerning the Family Court Division of the Alabama Administrative Office of Courts, including the Alabama Court Improvement Project, may be found at the Alabama Administrative.