By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Guardianship Attorney
We were asked in one of our cases to seek a court order formally recognizing our client’s wife as the adoptive parent of our client’s daughter. Presently the client is the child’s step parent. Normally, when we do adoptions, a biological parent giving up her rights must consent to the adoptive parent stepping in on his or her behalf. But this case has become a contest over who the child’s actual legal mother is. The court was considering appointing a guardian ad litem to represent the child’s interests in this case. Our client would bear the cost of paying the fees for the guardian ad litem, since New Jersey law requires the plaintiff to bear all costs of the adoption proceeding, so we opposed the appointment, arguing there was no need for one.
A Court is vested with discretion to appoint a guardian ad litem, whether it is for an adoption case or for any guardianship application. The case of Matter of Adoption of a Child by E.T., 302 N.J. Super. 533, 540 (App. Div. 1997) provides some lessons to learn when appointing a guardian ad litem that I believe can apply to this adoption case as well.
While it is true that the failure to appoint a guardian ad litem in a contested adoption proceeding without giving reasons can be reversible error, the court in E.T. was skeptical about the need to always appoint a guardian ad litem in every case. The Court emphasized the need to generally appoint a guardian in the first place, but noted that the appointment shouldn’t be routine, but only be used when the person to be adopted needs the special assistance and advocacy that only a guardian ad litem can provide. Orders from a court appointing a guardian ad litem need to describe why this person is being appointed and what purpose the guardian ad litem is serving to the court in the case. The reason for this ruling lies in the cost of appointing a guardian ad litem. In its concurring opinion in this case, the Appellate Court noted the financial toll an adoption proceeding can take on the family, including paying for experts, discovery costs, and deposition expenses if the proceeding is contested, along with all the attorney fees if the matter goes to trial. This cost is unbearable for many families, who might likely follow through with the adoption instead of pursuing the adoption, because of costs.
While this case is not binding on adoption matters throughout the State, it should be used as a guide in guardianship matters. Most times, the cost of the proceeding, including paying for the alleged incapacitated’s guardian ad litem, comes out of the estate of the incapacitated person and can have an impact on beneficiaries when the incapacitated person dies. Therefore, it is wise for our courts in guardianship matters to consider the lessons of E.T. and appoint guardians ad litem only when there is a clear need for that incapacitated person to minimize the cost of litigation against that person’s future estate.
To discuss your NJ Guardianship matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at email@example.com. Please ask us about our video conferencing consultations if you are unable to come to our office.