House Bill 3385

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h3300-99
h3385





    Florida House of Representatives - 1998                HB 3385

        By Representative Effman






  1                      A bill to be entitled

  2         An act relating to guardians ad litem; amending

  3         ss. 61.401 and 61.403, F.S.; providing that the

  4         guardian ad litem and the child's attorney need

  5         not be the same person; providing that

  6         guardians ad litem who are attorneys in good

  7         standing with The Florida Bar may act as their

  8         own attorneys; providing an effective date.

  9

10  Be It Enacted by the Legislature of the State of Florida:

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12         Section 1.  Section 61.401, Florida Statutes, is

13  amended to read:

14         61.401  Appointment of guardian ad litem.--In an action

15  for dissolution of marriage, modification, parental

16  responsibility, custody, or visitation, if the court finds it

17  is in the best interest of the child, the court may appoint a

18  guardian ad litem to act as next friend of the child,

19  investigator, or evaluator, not as attorney or advocate. The

20  court in its discretion may also appoint an independent legal

21  counsel for a child to act as its attorney or advocate;

22  however, the guardian and the legal counsel shall not be the

23  same person. In such actions which involve an allegation of

24  child abuse or neglect as defined in s. 415.503(3), which

25  allegation is verified and determined by the court to be

26  well-founded, the court shall appoint a guardian ad litem for

27  the child. The guardian ad litem shall be a party to the any

28  judicial proceeding in which he or she was appointed by the

29  court from the date of the appointment until the date of

30  discharge.

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    Florida House of Representatives - 1998                HB 3385

    579-112-98






  1         Section 2.  Section 61.403, Florida Statutes, is

  2  amended to read:

  3         61.403  Guardians ad litem; powers and authority.--A

  4  nonattorney guardian ad litem, when appointed, shall act as

  5  next friend of the child, investigator, or evaluator, not as

  6  the child's attorney or advocate but shall act in the child's

  7  best interest. A guardian ad litem shall have the powers,

  8  privileges, and responsibilities to the extent necessary to

  9  advance the best interest of the child, including, but not

10  limited to, the following:

11         (1)  The guardian ad litem may investigate the

12  allegations of the pleadings affecting the child, and, after

13  proper notice to interested parties to the litigation and

14  subject to conditions set by the court, may interview the

15  child, witnesses, or any other person having information

16  concerning the welfare of the child.

17         (2)  The nonattorney guardian ad litem, through

18  counsel, may petition the court for an order directed to a

19  specified person, agency, or organization, including, but not

20  limited to, hospitals, medical doctors, dentists,

21  psychologists, and psychiatrists, which order directs that the

22  guardian ad litem be allowed to inspect and copy any records

23  and documents which relate to the minor child or to the

24  child's parents or other custodial persons or household

25  members with whom the child resides. Such order shall be

26  obtained only after notice to all parties and hearing thereon.

27         (3)  The nonattorney guardian ad litem, through

28  counsel, may request the court to order expert examinations of

29  the child, the child's parents, or other interested parties in

30  the action, by medical doctors, dentists, and other providers

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    Florida House of Representatives - 1998                HB 3385

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  1  of health care including psychiatrists, psychologists, or

  2  other mental health professionals.

  3         (4)  The guardian ad litem may assist the court in

  4  obtaining impartial expert examinations.

  5         (5)  The guardian ad litem may address the court and

  6  make written or oral recommendations to the court. The

  7  guardian ad litem shall file a written report which may

  8  include recommendations and a statement of the wishes of the

  9  child. The report must be filed and served on all parties at

10  least 20 days prior to the hearing at which it will be

11  presented unless the court waives such time limit. The

12  guardian ad litem must be provided with copies of all

13  pleadings, notices, and other documents filed in the action

14  and is entitled to reasonable notice before any action

15  affecting the child is taken by either of the parties, their

16  counsel, or the court.

17         (6)  A nonattorney guardian ad litem, acting through

18  counsel, may file such pleadings, motions, notices, or

19  petitions for relief as the guardian ad litem deems

20  appropriate or necessary in furtherance of the guardian's

21  function. The nonattorney guardian ad litem, through counsel,

22  is entitled to be present and to participate in all

23  depositions, hearings, and other proceedings in the action,

24  and, through counsel, may compel the attendance of witnesses.

25         (7)  The duties and rights of nonattorney guardians do

26  not include the right to practice law.

27         (7)  A guardian who is a member in good standing of The

28  Florida Bar may act as his or her own counsel, and may file

29  such pleadings, notices, motions, or petitions for relief as

30  the guardian ad litem deems appropriate or necessary in

31  furtherance of the guardian's function.

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    Florida House of Representatives - 1998                HB 3385

    579-112-98






  1         (8)  The guardian ad litem shall submit his or her

  2  recommendations to the court regarding any stipulation or

  3  agreement, whether incidental, temporary, or permanent, which

  4  affects the interest or welfare of the minor child, within 10

  5  days after the date such stipulation or agreement is served

  6  upon the guardian ad litem.

  7         Section 3.  This act shall take effect upon becoming a

  8  law.

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11                          HOUSE SUMMARY

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      Revises provisions of law relating to guardians ad litem
13    to provide that the guardian ad litem and the child's
      attorney need not be the same person and to provide that
14    guardians ad litem who are attorneys in good standing
      with The Florida Bar may act as their own attorney.
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