Michigan[1]

Last Edited: April 2006

 

Summary and Analysis

 

A lawyer-guardian ad litem (L-GAL) is a lawyer who is appointed for every child in a protective proceeding in Michigan.  The main statute addressing the L-GAL’s role is 712A.17d.  The L-GAL owes the same duty of competent and zealous representation to the child as an attorney does to an adult client and the same confidentiality obligations inherent in the attorney-client privilege exist.  However, the L-GAL’s role is to represent the child’s best interests to the court.  The L-GAL is required to consider the child’s wishes in his or her best interests’ determination and, consistent with the attorney-client privilege, should relay the child’s wishes to the court, but the L-GAL is not bound by these wishes.

 

If the child’s determination of his or her interests differs from the L-GAL’s determination, the court then has the discretion, based on the child’s age, maturity, and the nature of the disagreement, to appoint a separate attorney to represent the child.  This attorney will then represent the child’s stated interests and the L-GAL will represent the child’s best interests.

 

The L-GAL serves from the beginning of the proceeding when a petition is filed until he or she is discharged by the court, which should not occur as long as the child is under the control or supervision of the court or state.  Thus, L-GALs often represent the child in appellate proceedings.

 

Court Appointed Special Advocates (CASAs) and Guardian ad litems (GALs) may also be appointed by the court, but their duty is to the court to help determine the child’s best interests, and they serve in addition to, not instead of, L-GALs.

 

Compensation

 

Every county in Michigan has its own procedures for compensation of L-GALs.  Some counties have contracts with attorneys and others appoint attorneys from a roster on a rotating basis.  Some counties also have centers dedicated to the representation of children in protective proceedings which contract with the county.  There is no statewide required fee; each county can set its own compensation.  Counties differ not only on total compensation per case, but how this compensation is measured – by hour, by case, or some hybrid thereof.  Some counties pay attorneys for the time spent meeting with the child client while others do not.

 

Sources of Law

 

Statutes

 

Michigan Compiled Laws

 

CHAPTER 701-713  PROBATE CODE  
PROBATE CODE OF 1939  
CHAPTER XIIA.  JURISDICTION, PROCEDURE, AND DISPOSITIONS INVOLVING MINORS


§ 712A.13a.    Definitions; petition; release of juvenile; order removing abusive person from home; placement of child; duty of court to inform parties; criminal record check and central registry clearance; family-like setting; parenting time; review and modification of orders and plans; release of information; information included with order; "abuse" defined.[2]

 

1…

(c) "Attorney" means, if appointed to represent a child in a proceeding under section 2(b) or (c) of this chapter, 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.

(f) "Guardian ad litem" means an individual whom the court appoints to assist the court in determining the child's best interests. A guardian ad litem does not need to be an attorney.

(g) "Lawyer-guardian ad litem" means an attorney appointed under section 17c of this chapter. A lawyer-guardian ad litem represents the child, and has the powers and duties, as set forth in section 17d of this chapter. The provisions of section 17d of this chapter also apply to a lawyer-guardian ad litem appointed under each of the following:

(iii)             Section 10 of the child protection law, 1975 PA 238, MCL 722.630.

 

§ 712A.17c.    Advising child or respondent of right to attorney; appointment of attorney; waiver; appointment of lawyer-guardian ad litem; costs; service until discharged by court; assistance to court.[3]

(2) In a proceeding under section 2(a) or (d) of this chapter, the court shall appoint an attorney to represent the child if 1 or more of the following apply:

(b) The child's parent is the complainant or victim.

(7) In a proceeding under section 2(b) or (c) of this chapter, the court shall appoint a lawyer-guardian ad litem to represent the child. The child shall not waive the assistance of the lawyer-guardian ad litem. In addition to any other powers and duties, a lawyer-guardian ad litem's powers and duties include those prescribed in section 17d.
(8) If an attorney or lawyer-guardian ad litem is appointed for a party under this act, after a determination of ability to pay the court may enter an order assessing attorney costs against 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 section 3 of 1887 PA 128, MCL 551.103. An order assessing attorney costs may be enforced through contempt proceedings.
(9) An attorney or lawyer-guardian ad litem appointed by the court under this section shall serve until discharged by the court. If the child's case was petitioned under section 2(b) of this chapter, the court shall not discharge the lawyer-guardian ad litem for the child as long as the child is subject to the jurisdiction, control, or supervision of the court, or of the Michigan children's institute or other agency, unless the court discharges the lawyer-guardian ad litem for good cause shown on the record. If the child remains subject to the jurisdiction, control, or supervision of the court, or the Michigan children's institute or other agency, the court shall immediately appoint another lawyer-guardian ad litem to represent the child.
(10) To assist the court in determining a child's best interests, the court may appoint a guardian ad litem for a child involved in a proceeding under this chapter.

 

§ 712A.17d.    Lawyer-guardian ad litem; powers and duties.[4]

(1) A lawyer-guardian ad litem's duty is to the child, and not the court. The lawyer-guardian ad litem's powers and duties include at least all of the following:
(a) The obligations of the attorney-client privilege.
   (b) To serve as the independent representative for the child's best interests, and be entitled to full and active participation in all aspects of the litigation and access to all relevant information regarding the child.
   (c) To determine the facts of the case by conducting an independent investigation including, but not limited to, interviewing the child, social workers, family members, and others as necessary, and reviewing relevant reports and other information. The agency case file shall be reviewed before disposition and before the hearing for termination of parental rights. Updated materials shall be reviewed as provided to the court and parties. The supervising agency shall provide documentation of progress relating to all aspects of the last court ordered treatment plan, including copies of evaluations and therapy reports and verification of parenting time not later than 5 business days before the scheduled hearing.
   (d) To meet with or observe the child and assess the child's needs and wishes with regard to the representation and the issues in the case in the following instances:
     (i)  Before the pretrial hearing.
     (ii)  Before the initial disposition, if held more than 91 days after the petition has been authorized.
     (iii)  Before a dispositional review hearing.
     (iv)  Before a permanency planning hearing.
     (v)  Before a post-termination review hearing.
     (vi)  At least once during the pendency of a supplemental petition.
     (vii)  At other times as ordered by the court. Adjourned or continued hearings do not require additional visits unless directed by the court.
   (e) The court may allow alternative means of contact with the child if good cause is shown on the record.
   (f) To explain to the child, taking into account the child's ability to understand the proceedings, the lawyer-guardian ad litem's role.
   (g) To file all necessary pleadings and papers and independently call witnesses on the child's behalf.
   (h) To attend all hearings and substitute representation for the child only with court approval.
   (i) To make a determination regarding the child's best interests and advocate for those best interests according to the lawyer-guardian ad litem's understanding of those best interests, regardless of whether the lawyer-guardian ad litem's determination reflects the child's wishes. The child's wishes are relevant to the lawyer-guardian ad litem's determination of the child's best interests, and the lawyer-guardian ad litem shall weigh the child's wishes according to the child's competence and maturity. Consistent with the law governing attorney-client privilege, the lawyer-guardian ad litem shall inform the court as to the child's wishes and preferences.
   (j) To monitor the implementation of case plans and court orders, and determine whether services the court ordered for the child or the child's family are being provided in a timely manner and are accomplishing their purpose. The lawyer-guardian ad litem shall inform the court if the services are not being provided in a timely manner, if the family fails to take advantage of the services, or if the services are not accomplishing their intended purpose.
   (k) Consistent with the rules of professional responsibility, to identify common interests among the parties and, to the extent possible, promote a cooperative resolution of the matterthrough consultation with the child's parent, foster care provider, guardian, and caseworker.
   (l) To request authorization by the court to pursue issues on the child's behalf that do not arise specifically from the court appointment.
   (2) If, after discussion between the child and his or her lawyer-guardian ad litem, the lawyer-guardian ad litem determines that the child's interests as identified by the child are inconsistent with the lawyer-guardian ad litem's determination of the child's best interests, the lawyer-guardian ad litem shall communicate the child's position to the court. If the court considers the appointment appropriate considering the child's age and maturity and the nature of the inconsistency between the child's and the lawyer-guardian ad litem's identification of the child's interests, the court may appoint an attorney for the child. An attorney appointed under this subsection serves in addition to the child's lawyer-guardian ad litem.
   (3) The court or another party to the case shall not call a lawyer-guardian ad litem as a witness to testify regarding matters related to the case. The lawyer-guardian ad litem's file of the case is not discoverable.

 

CHAPTER 722  CHILDREN  
CHILD PROTECTION LAW


§ 722.630.    Lawyer-guardian ad litem.[5]

Sec. 10. In each case filed under this act in which judicial proceedings are necessary, the court shall appoint a lawyer-guardian ad litem to represent the child. A lawyer-guardian ad litem represents the child and has powers and duties in relation to that representation as set forth in section 17d of chapter XIIA of 1939 PA 288, MCL 712A.17d. All provisions of section 17d of chapter XIIA of 1939 PA 288, MCL 712A.17d, apply to a lawyer-guardian ad litem appointed under this act.

 

Court Rules

 

Michigan Court Rules

 

MICHIGAN COURT RULES OF 1985  
CHAPTER 3  SPECIAL PROCEEDINGS AND ACTIONS  
Subchapter 3.900.  Proceedings Involving Juveniles

 

Rule 3.915  Assistance of Attorney.[6]

(B) Child Protective Proceedings.

(2) Child.

(a)  The court must appoint a lawyer-guardian ad litem to represent the child at every hearing, including the preliminary hearing. The child may not waive the assistance of a lawyer-guardian ad litem. The duties of the lawyer-guardian ad litem are as provided by MCL 712A.17d. At each hearing, the court shall inquire whether the lawyer-guardian ad litem has met with the child, as required by MCL 712A.17d(1)(d) and if the attorney has not met with the child, the court shall require the lawyer-guardian ad litem to state, on the record, his or her reasons for failing to do so.

(b)  If a conflict arises between the lawyer-guardian ad litem and the child regarding the child's best interests, the court may appoint an attorney to represent the child's stated interests.

 

Rule 3.965  Preliminary Hearing.[7]

(B) Procedure.

(2) The child's lawyer-guardian ad litem must be present to represent the child at the preliminary hearing. The court may make temporary orders for the protection of the child pending the appearance of an attorney or pending the completion of the preliminary hearing. The court must direct that the lawyer-guardian ad litem for the child receive a copy of the petition.

 

Ethical Provisions

 

Michigan Rules of Professional Conduct

 

Rule: 1.14  Client Under a Disability[8]

(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority or mental disability or for some other reason, 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.

 

Key Cases

 

In re Shaffer, 213 Mich. App. 429, 436 (1995)[9]

Finding that a child in a protective proceeding is entitled to zealous representation.

 

Local Contact Information

 

Carol Siemon

Deputy Director, Child Welfare Services
State Court Administrative Office
PO Box 30048
Lansing, Michigan 48909
517-373-8995
siemonc@courts.mi.gov

 

Additional Resources

 

Tobin L. Miller, Michigan Judicial Institute, Lawyer-Guardian ad Litem Protocol (2003), available here, and also as .pdf Document, and also as Word Document.

 

State Bar of Michigan Children’s Task Force, Guidelines for Advocates for Children in Michigan Courts, available http://www.rollanet.org/~childlaw/galstd/mi-intro.htm, and also here, and also as .pdf Document, and also as Word Document.

 

Donald N. Duquette, Legal Representation for Children in Protection Proceedings: Two Distinct Lawyer Roles are Required, 34 Fam. L. Q. 441.

 

 

 



Endnotes

1 This page is also available as a .pdf Document, and Word Document.

[2] Mich. Comp. Law §712A.13a (2006), available here, and also as .pdf Document, and also as Word Document.

[3] Mich. Comp. Law §712A.17c (2006), available here, and also as .pdf Document, and also as Word Document.

[4] Mich. Comp. Law §712A.17d (2006), available here, and also as .pdf Document, and also as Word Document.

[5] Mich. Comp. Law §722.630 (2006), available here, and also as .pdf Document, and also as Word Document.

[6] M.C.R. §3.915 (2006), available here, and also as .pdf Document, and also as Word Document.

[7] M.C.R. §3.965 (2006), available here, and also as .pdf Document, and also as Word Document.

[8] M.R.P.C. §1.14 (2006).

[9] In re Shaffer, 213 Mich. App. 429, 436 (1995), available here, and also as .pdf Document, and also as Word Document.