Alaska R. Civ. P. 90.7

(a) When Guardian Ad Litem May Be Appointed. In

an action under AS 25.20, 25.24, or 18.66 involving custody,

support, or visitation of a child, the court may appoint a

guardian ad litem for the child only when the court finds

separate representation of the child’s best interests is

necessary, such as when the guardian ad litem may be

expected to present evidence not otherwise likely to be

available or presented, or the proceeding is unusually complex.

Commentary.—AS 25.24.310 authorizes the court to appoint a

guardian ad litem in any action involving custody, support, or

visitation of a child. AS 25.24.310(c) states in part:

“Instead of, or in addition to, appointment of an attorney

under (a) of this section, the court may, upon motion of

either party or upon its own motion, appoint an attorney

or other person or the office of public advocacy to

provide guardian ad litem services to a child in any legal

proceeding involving the child’s welfare. The court shall

require a guardian ad litem when, in the opinion of the

court, representation of the child’s best interests, to be

distinguished from preferences, would serve the welfare

of the child.”

Courts should not routinely appoint guardians ad litem in

custody, support, and visitation proceedings. In most

instances, the child’s best interests are adequately protected

and presented by the parties. In most contested proceedings in

which professional input is warranted, a child custody

investigator should be appointed instead of a guardian ad

litem. The child custody investigator can provide the court and

the parties with an independent analysis of the dispute and

may serve as a catalyst to settlement without adding another

party to the proceeding.

(b) Qualifications.

(1) A guardian ad litem should possess knowledge, skill,

experience, training, or education that allows the guardian ad

litem to conduct a thorough and impartial investigation and

effectively advocate for the best interests of the child.

Specifically, the guardian ad litem should have an

understanding of the following as appropriate to the case:

(A) child development from infancy through adolescence;

(B) impact of divorce and parental separation on a child;

(C) unique issues related to families involved in custody

disputes;

(D) domestic violence and substance abuse and their

impact on children;

(E) Alaska statutes, rules, and supreme court decisions

relating to custody, support, and visitation;

(F) the ability to communicate effectively with children

and adults; and

(G) other qualifications appropriate to the particular case.

Further, the guardian ad litem should possess the

knowledge and skills to effectively negotiate settlements on

behalf of the child and to effectively advocate the child’s best

interests in contested litigation.

(2) Upon request of a party, a guardian ad litem or

prospective guardian ad litem shall provide to the parties a

written summary of relevant education and experience.

(c) Appointment Order. An order appointing a

guardian ad litem must include findings why the appointment

is necessary and must set forth the role of the guardian ad

litem, the duties to be performed by the guardian ad litem in

the case, deadlines for completion of these duties to the extent appropriate, the duration of the appointment, and compensation as provided in paragraph (m). If the court

denies a motion for appointment of a guardian ad litem, the

court must make findings to explain the denial. An order

appointing a guardian ad litem should authorize the guardian

ad litem access, without further release, to all confidential and

privileged records of the child, including but not limited to

psychiatric records, psychological treatment records, drug and

alcohol treatment records, medical records, evaluations, law

enforcement records, and school records.

Commentary. —If the court determines that the appointment

of a guardian ad litem is appropriate in a particular case, the

court may ask the parties to suggest individuals for

appointment.

There is no right to a peremptory change of a guardian ad

litem. Allegations that a guardian ad litem appointment is

unnecessary, that a particular appointee is unqualified or

otherwise unsuitable, or that an appointee is or has become

biased should be addressed by trial courts through motion

practice.

The appointment order should authorize the guardian ad litem

to review confidential and privileged records pertaining to the

child. To review records pertaining to a parent, the guardian

ad litem must file a motion requesting access to those records

unless the parent agrees to sign a release.

(d) Disclosure of Conflicts. The guardian ad litem shall

disclose any relationships or associations between the guardian

ad litem and any party which might reasonably cause the

guardian ad litem’s impartiality to be questioned. This

disclosure must be made no later than 10 days after

appointment.

(e) Role of Guardian Ad Litem. The guardian ad litem

shall represent and advocate the best interests of the child. The

court may appoint an attorney to advise or represent a non-attorney guardian ad litem if the court finds that legal advice or

legal representation of the guardian ad litem is necessary to

represent the child’s best interests. The guardian ad litem shall

be treated as a party to the proceeding for all purposes, except

as otherwise provided in this rule.

Commentary.—When custody is contested, the court has

discretion to appoint a custody investigator, a guardian ad

litem, and/or an attorney for the child. See AS 25.24.310(a),

(c). The roles of a custody investigator, a guardian ad litem,

and an attorney for the child are different and must be clearly

distinguished:

■ custody investigator: A custody investigator is an expert

witness appointed by the court. The custody investigator’s

duty is to conduct a thorough investigation and give an expert

opinion on the custody arrangement that is in the best interests

of the child. A custody investigator does not participate in

court proceedings, other than to testify as an expert witness.

■ guardian ad litem: A guardian ad litem has the duty to

conduct a thorough factual investigation. Based on this

investigation, the guardian ad litem must decide what course

of action is in the child’s best interests. The guardian ad litem

must then advocate this course of action, regardless of whether

the child agrees with the guardian ad litem’s position. The

guardian ad litem participates as a party in court proceedings

that affect the child, but only testifies in exceptional

circumstances and then only as to factual matters. The

guardian ad litem never testifies as an expert witness.

The guardian ad litem must be served with copies of all

pleadings and papers relating to the child, see Civil Rule 4(i),

and must be given notice of all court appearances and

conferences involving issues that affect the child. The

guardian ad litem’s rights include the right to appear and

participate at hearings, engage in motion practice, conduct

discovery, introduce evidence, examine and cross-examine

witnesses, make objections, and make opening statements and

closing arguments.

The guardian ad litem’s advocacy need not be confined to

custody and visitation issues. If included within the scope of

the appointment, the guardian ad litem should be prepared to

participate in decisions about any special education or

psychological needs of the child (such as counseling) and child

support and other financial issues related to the child.

■ attorney for child: A child’s attorney represents the child,

and it is the child who ultimately decides what position will be

advocated in court. The attorney’s duty is to conduct a

thorough investigation, advise and consult the client, and

zealously advocate the client’s position in court. See Wagstaff

v. Superior Court, 535 P.2d 1220 (Alaska 1975) (concerning

child’s right to select attorney when child’s interests are

hostile to parents’ interests).

The court may appoint an attorney to advise or represent a

non-attorney guardian ad litem. If the court takes this action,

the court should take care to specify the scope and duration of

the appointment and the attorney’s compensation.

(f) Duty to Investigate. The guardian ad litem shall

investigate the pertinent facts of the case.

(1) The guardian ad litem shall review and consider any

child custody investigation already conducted in the case and

confer with the investigator. The guardian ad litem shall

promptly conduct any further investigation necessary to carry

out the order of appointment.

(2) If no child custody investigation has been done, the

guardian ad litem shall either conduct an appropriate

investigation or arrange for a custody investigation under Civil

Rule 90.6. The investigation shall be conducted as soon as

reasonably possible after the appointment.

Commentary.—In developing a position, the guardian ad

litem should usually solicit and receive input from

professionals and other persons with experience or evidence

related to the family, such as mental health professionals,

teachers, day care providers, medical providers, close

relatives of the child, and other adults residing in the home of

either parent.

The guardian ad litem may move for an order requiring the

child or one or both parents to undergo evaluation or

assessment related to psychological, substance abuse, or other

issues raised in the investigation.

Paragraph (m) requires a guardian ad litem to seek court

approval before hiring a custody investigator to conduct an

investigation.

(g) Contact with Child, Other Parties, and the Court.

(1) Contact with Child. The guardian ad litem may meet

with the child as often as necessary to ascertain and represent

the child’s best interests. An attorney for a party shall not have

independent contact with the child without the consent of the

guardian ad litem or a court order. A party or attorney shall

not arrange for mental health evaluations or assessments of the

child without the consent of the guardian ad litem or a court

order.

(2) Contact with Other Parties. A guardian ad litem may

communicate with a party who is represented by an attorney

unless the party’s attorney has notified the guardian ad litem in

writing that such communication should not occur outside the

attorney’s presence.

(3) Contact with Court. Unless all parties consent, a

guardian ad litem shall not engage in ex parte communications

with the court concerning a pending case except for scheduling

and other administrative purposes when circumstances require.

(h) Trial or Hearing Brief. The court shall set a

deadline for the guardian ad litem to file a trial or hearing

brief. The brief must describe the guardian ad litem’s

investigation, including who was interviewed and what records

were reviewed, analyze the facts that the guardian ad litem

believes will be presented, explain the position taken by the

guardian ad litem utilizing the applicable statutory factors, and

address other matters the guardian ad litem believes to be

appropriate. If there is a conflict between the guardian ad

litem’s position and the child’s preference, that conflict must

be disclosed in the brief.

Commentary.—The guardian ad litem’s brief cannot be

treated as testimony or as evidence of any fact unless agreed to

by the parties. Absent a stipulation, facts discussed in the

guardian ad litem’s brief must be proved at trial.

In many cases, the parties will not know the guardian ad

litem’s position or what facts the guardian ad litem has relied

on until they receive the guardian ad litem’s brief. Ideally,

that brief should be due at least 30 days before the trial or

hearing date so that the parties have sufficient time to prepare

evidence in order to respond at trial. An early due date is also

desirable because the guardian ad litem’s brief often serves as

a catalyst for settlement. At a minimum, the brief should be

filed before the parties’ briefs are due so that the parties can

address the guardian ad litem’s position in their briefs.

If there is a conflict between the guardian ad litem’s

position and the child’s preference, the court may appoint a

separate attorney to represent the child. The court should take

this action only if the child’s preference cannot be presented

adequately by one of the parties. If the court appoints a

separate attorney for the child, the court may either discharge

the guardian ad litem or continue the guardian ad litem

appointment to represent what the guardian ad litem believes

to be in the child’s best interests.

(i) Testimony.

(1) The guardian ad litem shall not testify at the trial or

hearing unless:

(A) the testimony relates to an uncontested issue;

(B) the testimony relates to the nature and value of

services rendered by the guardian ad litem in the case; or

(C) the testimony is necessary to present factual evidence

on a material issue that is not available from another source.

(2) If the guardian ad litem intends to testify, the

guardian ad litem shall file and serve notice of this intent with

the trial or hearing brief. The notice must identify the subject

of the guardian ad litem’s testimony.

(3) Upon receiving notice that the guardian ad litem

intends to testify, the court should consider whether the

guardian ad litem can still effectively represent the best

interests of the child. If not, the court may discharge the

guardian ad litem, appoint another guardian ad litem, or

appoint an attorney for the guardian ad litem or the child.

(4) If the guardian ad litem testifies, the guardian ad

litem may be cross-examined as any other witness.

Commentary.—Subparagraph (i)(1) reflects the principles of

Alaska Rule of Professional Conduct 3.7(a), which under most

circumstances prohibits an attorney from acting as an

advocate in a proceeding in which the attorney is likely to be a

witness.

In opening statements and closing arguments, a guardian ad

litem is free to comment on the evidence and to suggest

conclusions that the court should draw from the evidence. But

the statements themselves are not and cannot be treated as

testimony or evidence.

(j) Discovery.

(1) Discovery of Documents in Guardian Ad Litem’s

Possession. A party may obtain discovery of documents in the

possession, custody, or control of the guardian ad litem,

subject to the following limitations:

(A) the documents must be discoverable under Civil Rule

26(b)(1); and

(B) trial preparation materials as defined in Civil Rule

26(b)(3) are discoverable only as permitted by that rule.

(2) Discovery

Regarding

Guardian

Ad

Litem’s

Testimony. If the guardian ad litem has served notice that the

guardian ad litem intends to testify, a party may obtain

discovery from the guardian ad litem about the substance of

this testimony.

(3) Other Inquiry. A party may obtain other discovery

from a guardian ad litem only as permitted by the court upon a

showing of good cause. The court may permit a party to

question a guardian ad litem about the guardian ad litem’s

professional qualifications and experience or the guardian ad

litem’s actions in the case. But this inquiry must be conducted

in the presence of the court.

(k) Duty to Maintain Confidentiality. The guardian ad

litem shall not disclose communications made by the child or

reveal information relating to the child, except as necessary to

carry out the representation, unless:

(1) the guardian ad litem determines that disclosure is in

the best interests of the child;

(2) disclosure would be permitted under Alaska Rule of

Professional Conduct 1.6(b) as if the guardian ad litem were

the child’s lawyer;

(3) disclosure is required under paragraph (h) (duty to

tell the court that child’s preference differs from guardian ad

litem’s position); or

(4) disclosure is permitted by court order or by law.

Commentary.—A guardian ad litem should advise the child

that statements made by the child will ordinarily be kept

confidential but may be disclosed if the guardian ad litem

determines that disclosure is in the child’s best interests and in

the other circumstances described in this rule.

(l) Privileges.

(1) The guardian ad litem has a privilege to refuse to

disclose and to prevent anyone other than the child from

disclosing confidential communications made by the child.

This privilege does not apply if disclosure of the

communication is required by law or if the court finds there are

compelling reasons to reveal the communication.

(2) The attorney-client privilege does not apply to

confidential communications between the child and an attorney

guardian ad litem.

Commentary.—An attorney serving as a guardian ad litem

does not act as legal counsel for the child but rather as a party

to the proceeding. Therefore, the attorney-client privilege

does not apply. But the policy behind the attorney-client

privilege is equally compelling in the guardian ad litem-child

relationship: to encourage the child to talk openly and

candidly to the guardian ad litem so that the guardian ad litem

can make the best possible determination about what is in the

child’s best interests. Therefore, this rule adopts a limited

privilege for confidential communications between an attorney

or non-attorney guardian ad litem and the child. It also allows

the guardian ad litem to protect confidential communications

made by the child to other persons.

(m) Compensation. The guardian ad litem, an attorney

for a guardian ad litem, and expert witnesses used by the

guardian ad litem will be compensated at a rate that the court

determines is reasonable. Fees and costs for a private guardian

ad litem will be divided equally between the parties unless the

court finds good cause to change this allocation. The guardian

ad litem must seek court approval before incurring

extraordinary expenses, such as expert witness fees. The

appointment order, or order authorizing the guardian ad litem

to hire expert witnesses, must specify the hourly rate to be paid

to the guardian ad litem, attorney, or expert witness, the

maximum fee that may be incurred without further

authorization of the court, how the fee will be allocated

between the parties, and when payment is due. Unless

otherwise ordered, bills must be submitted on a monthly basis

and must state the total amount billed to date.