Child’s guardian ad litem immune from suit
By Peter Vieth
Published: September 1, 2011
It’s no surprise that lawyers appointed to represent the interests of children in hostile divorce cases can find themselves at odds with one or both parents of the child. In some cases, the parents even sue the lawyer acting as guardian ad litem.
A new decision from a Roanoke federal judge offers some reassurance that – in most such cases – the courts will protect a GAL who’s just doing the job.
U.S. District Judge Samuel G. Wilson held in Serdah v. Edwards that a guardian ad litem accused of violating a father’s constitutional rights was absolutely immune from suit in his role as GAL.
Roanoke lawyer Peter Edwards – as a GAL for a young boy – had sought a protective order against the boy’s father, fearing the father intended harm to his son as well as other family members.
The father filed a § 1983 action in federal court alleging Edwards conspired with the mother to violate the father’s rights.
Granting summary judgment for Edwards and the other defendants, Wilson found Edwards was shielded from the civil rights claims by both his independence from state government and by his role in the judicial process.
Wilson distinguished a 4th Circuit case allowing suit against a guardian of a ward who had custody of the ward and worked “in tandem” with state officials regarding the ward’s treatment.
“Edward’s role as a guardian ad litem is essentially that of an advocate,” Wilson wrote.
In the alternative, even if Edwards were deemed a state actor, he would be entitled to absolute immunity from § 1983 claims for duties performed in his role as GAL, Wilson held.
Wilson also found the father’s claim against Edwards lacked merit on factual grounds.
Roanoke lawyer Kevin Barnard, who represented Edwards, said Wilson’s decision follows the case law, but is welcome news for GALs. “It should be of comfort to guardians ad litem,” he said.
As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.
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