Family Court Rules Advisory Committee Commentary*

A guardian appointed pursuant to Minnesota Statutes, section 257.60 becomes a party to the action if the child is made a party. The guardian then would be entitled to initiate and respond to motions, conduct discovery, call and cross-examine witnesses, make oral or written arguments or reports and appeal on behalf of a child without the necessity of applying to the court.

A guardian appointed under Minnesota Statutes, section 518.165 is not a party to the proceeding and may only initiate and respond to motions and make oral statements and written reports on behalf of the child.

A party has the right to cross-examine as an adverse witness the author of any report or recommendation on custody and visitation of a minor child. Thompson v. Thompson, 288 Minn. 41, 55 N.W. 329 (1952) and Scheibe v. Scheibe, 308 Minn. 449, 241 N.W.2d 100 (1976).

Practice among the courts may vary with respect to appointments. Some courts maintain panels of lay guardians while other courts maintain panels of attorney guardians. If a lay guardian is appointed, an attorney for the guardian may also be appointed. Guardians may volunteer or be paid for their services. An attorney requesting appointment of a guardian should inquire into local practice.

Original Advisory Committee Comment–Not kept current

Task Force Comment–1991 Adoption

Subdivision (a) of this rule is derived from existing Second District R. 1.07.

Subdivision (b) of this rule is derived from Rule 1.02 of the Uniform Rules of Family Court Procedure. The first sentence of the subdivision is new and is intended to make it clear that practice involving guardians ad litem is also governed by another rule provision.

Advisory Committee Comment–2012 Amendments

Rule 302.02(a) specifies that the proper designation of parties in family court proceedings is as petitioner and respondent. Where a proceeding is commenced jointly, both parties may be designated as co-petitioners. The rule permits the parties, once properly designated in the appropriate pleadings, to be designated by less formal terms that indicate their relationship. The rule is amended to recognize that those designations are not limited to husband and wife, and other forms of relationships are encountered in family court proceedings. The “petitioner” and “respondent” labels are to be used in parentage cases, despite the historic use of “plaintiff” and “defendant” in these cases. There is no statutory or other requirement for the use of those labels, although at least one statute uses the term “defendant” in specifying the proper venue for these actions. See Minn. Stat. § 257.59. It is particularly helpful to use common terminology given the fact parentage proceedings may be combined with or joined with an action for dissolution, annulment, legal separation, custody under Minn. Stat. ch. 518, or reciprocal enforcement of support pursuant to Minn. Stat. § 257.59, subd. 1.

Rule 302.02(b) deals with guardians ad litem. A guardian appointed pursuant to Minnesota Statutes, section 257.60 becomes a party to the action if the child is made a party. The guardian then would be entitled to initiate and respond to motions, conduct discovery, call and cross-examine witnesses, make oral or written arguments or reports and appeal on behalf of a child without the necessity of applying to the court. This rule applies to appointment of a guardian ad litem for minor children. Appointment of a guardian in other situations is governed by Rule 17.02 of the Minnesota Rules of Civil Procedure.

A guardian appointed under Minnesota Statutes, section 518.165 is not a party to the proceeding, but may initiate and respond to motions and make oral statements and written reports on behalf of the child. A party has the right to cross-examine as an adverse witness the author of any report or recommendation on custody and visitation of a minor child. Scheibe v. Scheibe, 308 Minn. 449, 241 N.W.2d 100 (1976); Thompson v. Thompson, 238 Minn. 41, 55 N.W.2d 329 (1952).

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