SYNOPSIS OF NEW COURT RULES
The Supreme Court has adopted two new North Dakota Rules of Court. Rule 8.6 governs a lay guardian ad litem, appointed under N.D.C.C. § 14-09-06.3, which the rule refers to as a custody investigator. Rule 8.7 governs a law-trained guardian ad litem appointed under N.D.C.C. § 14-09-06.4. The new rules replace N.D.R.Ct. 4.1.
The new rules distinguish between a lay guardian ad litem and a law-trained guardian ad litem by defining the qualifications, responsibilities and roles of each. Under Rule 8.6, preferred qualifications for a custody investigator include: 1) An Associate Degree in an academic field related to children or five years child care experience; 2) eighteen hours of specialized training; and 3) six hours of annual training. "The Supreme Court anticipates making the qualifications for a custody investigator mandatory, and will review the matter one year after the effective date of this rule."
A custody investigator is responsible for becoming knowledgeable about the child's and family's history and situation through observations, interviews, and by reviewing records and reports. A custody investigator is responsible for preparing and filing a written report regarding the child's best interests, and for recommending appropriate evaluations.
Finally, Rule 8.6 limits the role of a custody investigator in court proceedings. A custody investigator may not call a witness, question a witness, file a motion, or act as a legal advocate. A custody investigator may be called to testify.
Rule 8.7 governs a law-trained guardian ad litem under N.D.C.C. § 14-09-06.4. To qualify as a guardian ad litem, a person must be a licensed North Dakota attorney, have eighteen hours of guardian ad litem training, and complete an additional eighteen hours of training every three years. A guardian ad litem must be appointed, if the court finds an appointment is necessary to protect the best interests of the child involved. The rule lists factors for the court to consider in determining whether to appoint a guardian ad litem.
A guardian ad litem is responsible for advocating the best interests of the child as to legal custody, physical placement, visitation, and support. A guardian ad litem is not bound by the wishes of the child or others as to the best interests of the child.
A guardian ad litem is to protect the child through and in court proceedings. A guardian ad litem may apply for a court order to protect the child, to obtain temporary relief, to determine custody, or to determine visitation. A guardian ad litem is to act as an attorney and fully participate in negotiations, pretrial procedures, and judicial proceedings. A guardian ad litem may present a case, cross-examine a witness, deliver a summation, prepare a memorandum of law, file a motion, and file or participate in an appeal.
The role of a guardian ad litem is to act as an attorney. A guardian ad litem is not to act as a custody investigator by preparing a custody investigation report or by testifying. A guardian ad litem is not expected to be frequently appointed. A custody investigator will be more commonly used.
The new rules will become effective March 1, 2000. The time between the date of adoption and the effective date is intended to provide time for people to become trained according to the criteria of the new rules.