The application for the guardian ad litem is typically done concurrently with the filing of the child’s lawsuit. The courts will routinely sign the order for appointment, and then the clerk’s office will then file the complaint (lawsuit). Likewise, if the defendant is a minor child, then the defense attorney would make an application for a court order for a guardian ad litem for that child defendant. If a lawsuit was never filed, and all that is needed is court approval of the child’s settlement, then the application for the guardian ad litem is also filed concurrently for the petition for the minor compromise and release hearing (the court approval of the minor child’s settlement).
The Reason a Guardian Is Needed for an Injured Minor Child
As already discussed in other articles and blog posts on this website, a child must be represented by a guardian in court, or when a settlement for bodily injuries is being approved by the court. California law makes it a requirement that a person must have “legal standing” and “legal capacity” to sue for his or her injuries. “Legal standing” simply means that a person has a real interest with respect to the claim or issue for a court to grant a remedy, and “legal capacity” means that a person has an ability or legal right to be in court in the first place. Thus, all minors, except for narrow exceptions, lack capacity to sue in their own names. Instead, all legal actions must be conducted through a guardian, conservator of the estate, or guardian ad litem, per the California Code of Civil Procedure Section 372(a).111 In California, there are only very narrow exceptions to this general rule, and these include cases where a minor child is seeking or opposing protective or retraining orders, and the child is at least twelve years of age. However, those limited exceptions go beyond the theme of this book.
The Guardian ad Litem
As long as a guardian or conservator has not previously been appointed for the minor child, the most common way to have a California court approve a minor’s monetary settlement from an injury is to appoint the child’s mother or father as the guardian ad litem (GAL). Even if a guardian or conservator has previously been appointed to the minor child, a court can still appoint a guardian ad litem if it deems it expedient to do so to get the settlement for the child’s injuries moving along. Remember, the guardian ad litem is not a party to the action per se, but rather the “representative of record of the party (minor child)” who lacks legal capacity to represent himself or herself since he or she is under age. The guardian ad litem being appointed by the court does not require an independent hearing; he or she can be appointed as part of the same lawsuit to which the minor child is a party.
Parents must have a lawyer prepare the paperwork and represent the injured minor child through this court approval process. This means that a parent, or guardian ad litem, who is not an attorney, cannot act in pro per (without a lawyer) when representing the child’s interest in a monetary settlement before the courts. Doing so would constitute the unlawful practice of law. The only narrow exception to this rule is that if the injury attorney has been removed or relieved as counsel of record, then the guardian ad litem can dismiss the minor’s child’s petition or lawsuit without prejudice (a rare circumstance). However, any injury attorney who handles minor children injuries is fully capable of preparing the necessary legal paperwork and handling the court approval process with a nominated and approved guardian ad litem.
Legal Research for this Article Post: Standard California Codes, Code of Civil Procedure Section 372(a), Guardian, conservator, or guardian ad litem for minor or incompetent person; exception for minor seeking protective order pursuant to the Domestic Violence Prevention Act, Title III, Chapter 3, 74; Cal. Family Code Section 6601. California Code of Civil Procedure Sections 327(b)(1), 374(a)(b), 527.6, and 527.8, California Family Code Sections 6200 et seq., 7710 and 7720. See also Sarracino v. Sup. Ct. (Sarracino)1974 13 C3d 1, 12, 118 CR 21, 29. 113 See In re D.D. (2006) 144 CA4th 646, 652, 50 CR3d 578, 582; (A guardian ad litem is also mandatory in paternity actions; see California Family Code Section 7635. J.W. v. Sup. Ct. (1993) 17 CA4th 958, 964, 22 CR2d 527, 529-530. 115 Sarracino v. Sup. Ct. (Sarracino) 1974 13 C3d 1, 12, 118 CR 21, 29. 116 California Business & Professions Code Section 6125; see J.W. v. Sup. Ct., supra, 17 CA4th at 965, 22 CR2d at 530—mother appointed as guardian ad litem for minor child. Color-Vue, Inc. v. Abrams (1996) 44 CA4th 1599, 1604, 52 CR2d 443, 446 (emphasis in original). 110 American Alternative Energy Partners II, 1985 v. Windridge, Inc. (1996) 42 CA4th 551, 559, 49 CR2d 686, 691 (citing text).