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Rule 7 – Representation by Guardians Ad Litem and Attorneys of Minors Who are Subjects of Proceedings Under Rules 4.0-4.3 and 9

May 14, 2021 | Family Law, Vermont

(a) Applicability. This rule applies to all proceeding under Rules 4 and 9 in which a minor child is a subject of the proceeding.
(b) Appointment of Guardian Ad Litem. In any proceeding in which the determination of parental rights and responsibilities or parent-child contact is a substantial issue, the court may appoint a guardian ad litem to assist the child in understanding the process and to provide the parties and their attorneys with information that can assist the parties in reaching an outcome that is in the best interest of the child. The guardian ad litem may be an attorney but shall not serve as the child’s attorney.
(c) Appointment of Attorney. If issues related to the child are contested and the guardian ad litem recommends the appointment of an attorney for the child pursuant to Rule 7(e)(6), the court shall appoint an attorney for the child, provided that there are sufficient resources to do so and that the appointment will not cause undue delay. In appropriate circumstances, the court may appoint an attorney for the child without a request from the guardian. The court may order either or both parties to pay a reasonable fee for the attorney’s service.
(d) Child as Witness.

(1) In any proceeding in which a party seeks to call as a witness a minor child who is a subject of the proceeding, the court shall hold a hearing to determine whether to allow the child to testify. If a guardian ad litem and an attorney for the child have not previously been appointed under (b) or (c), then, to assist the court in that determination:

(A) in a proceeding under Rules 4.0-4.3,, the court shall appoint a guardian ad litem and an attorney for the child;
(B) in a proceeding under Rule 9, the court may appoint a guardian ad litem, an attorney, or both for the child.
(2) If the court finds after hearing that the testimony of the child is necessary to assist the court in determining the issue before it, that the evidence sought is not reasonably available by any other means, and that the probative value of the testimony outweighs the potential detriment to the child from being called as a witness, the court may allow the testimony, subject to the following conditions:

(A) In a proceeding under Rules 4.0-4.3,, the court shall continue the appointment of the guardian ad litem and the attorney for the child.
(B) In a proceeding under Rule 9, the court may appoint or continue the appointment of a guardian ad litem or an attorney or both.
(C) In either case, the court may impose any further conditions that it deems appropriate to protect the child.
(e) Order of Appointment. In appointing a guardian ad litem under this rule, the court shall issue an order specifying the issues to be decided by the court and the activities to be carried out by the guardian ad litem, which may include:

(1) familiarizing herself or himself with all pertinent pleadings, existing reports, and other documents;
(2) talking to the parties;
(3) talking to the child in order to obtain information, determine the child’s wishes, inform the child about the proceedings and options, and observe the child with each parent;
(4) talking to third parties having relevant information, with parental authorization to third parties to release information as ordered by the court;
(5) serving as a contact person between the parties and the child;
(6) making a recommendation concerning the appointment of an attorney for the child;
(7) performing any duties on behalf of the child as directed by the court.
(f) Role of Guardian Ad Litem in Court Proceedings.

(1)In Pretrial Proceedings. At any conference or pretrial proceeding:

(A) either the attorney for the child or the guardian ad litem may state the child’s position, if the child has a position;
(B) the guardian ad litem shall, prior to the proceeding, submit to the court and the parties a list of all of the guardian ad litem’s activities carried out pursuant to the court’s order issued under (e);
(C) the guardian ad litem, if requested by the court, may make a brief oral statement on the record as to matters that will help the court formulate issues for further pretrial procedure and trial. The guardian ad litem’s oral statement will not be considered evidence.
(2)In Evidentiary Hearings.

(A) A guardian ad litem may be present at an evidentiary hearing but may not speak on the record unless an attorney for the child has been appointed and either the parties agree, or the court requests, that the guardian ad litem speak. Except as provided in (B), any statement by the guardian will not be considered evidence.
(B) A guardian ad litem may not be called as a witness unless an attorney for the child has been appointed and the testimony of the guardian ad litem would be directly probative of a contested fact as to which no other person could be employed or subpoenaed to testify. The court may appoint a replacement for a guardian ad litem who is called as a witness.

Vt. R. Fam. Proc. 7

Added Aug. 22, 1991, eff. Nov. 1, 1991; amended May 12, 2006, eff. July 14, 2006; Jan. 22, 2014, eff. March 24, 2014; Aug. 25, 2016, eff. Dec. 5, 2016.

Reporter’s Notes-2016 Amendment

The title ofV.R.F.P. 7 and V.R.F.P. 7(d)(l)(A) and (2)(A) are amended for conformity with the simultaneous abrogation of former V.R.F.P. 4 and promulgation of restyled and reorganized V.R.F.P.4.0-4.3. See Reporter’s Notes to those rules.