Guardian Ad Litem in Tennessee: Appointment, Duties, and Fees

A guardian ad litem in Tennessee is a person a court appoints to represent the best interests of a child or an incapacitated adult when the judge decides the existing parties in a case cannot adequately protect that person’s welfare. You will see these appointments most often in three settings: juvenile court cases involving abuse, neglect, or dependency; custody disputes tied to divorce; and conservatorship petitions in probate court. The rules that govern the appointment, the duties, and even who qualifies to serve differ significantly among those three, so the first thing to know is which track your case is on.

When a Court Appoints a GAL

Juvenile Abuse, Neglect, and Dependency Cases

Tennessee Code 37-1-149 makes the appointment mandatory in any juvenile proceeding that stems from a report of harm or an abuse investigation. Appointment is also required when a child has no parent or guardian appearing on their behalf, or when the parent’s interests conflict with the child’s.¹ A party to the case, or that party’s employee, cannot be appointed. Because appointment is automatic in these cases, no one has to file a request.

Divorce and Custody Proceedings

Tennessee Code 36-4-132 gives the court discretion to appoint a GAL for any minor child of the marriage, either on its own initiative or at either party’s request.² Supreme Court Rule 40A adds that appointment should happen when the court finds the child’s best interests are not adequately protected by the parties and that separate representation is necessary.³ Judges typically consider high-conflict parenting disputes, abuse allegations, or situations where a child’s stated wishes diverge sharply from what appears to be in their best interest.

Conservatorship Petitions

Tennessee Code 34-1-107 requires a GAL whenever someone petitions to become a fiduciary, such as a conservator, for another person. The GAL must investigate the respondent’s physical and mental capabilities, conduct an in-person interview, and review the sworn medical report filed with the petition.⁴

Who Can Serve

In juvenile abuse, neglect, and dependency cases under Rule 40, the GAL must be a lawyer. Rule 40 contemplates an attorney who reviews DCS records, conducts formal discovery, and cross-examines witnesses.⁵ The statute requires that the appointed GAL receive training appropriate to the role before the appointment.¹

In custody proceedings under Rule 40A, the pool is wider. The rule defines “guardian ad litem” to include a specially trained Court Appointed Special Advocate (CASA) volunteer, an attorney, or another licensed professional whose training relates to determining a child’s best interests.⁶ Whoever is appointed must have the knowledge, skill, experience, training, or education needed to conduct a thorough and impartial investigation.

Tennessee Code 37-1-149 also authorizes courts to appoint nonlawyer CASA volunteers to act in a child’s best interest before, during, and after court proceedings. In juvenile cases, a CASA volunteer may work alongside an attorney GAL rather than replace one.¹

What the GAL Actually Does

The GAL’s specific duties come from the court’s appointment order and the applicable rule. Treating the role as one uniform job across all cases is the source of a lot of confusion.

Under Rule 40 (Juvenile Court)

Rule 40 assigns the attorney GAL an extensive investigative mandate. The GAL independently gathers facts by reviewing DCS records, the child’s medical and school records, and the parents’ relevant records, including criminal, psychological, and substance abuse records where relevant. The GAL interviews parents (with their attorneys’ permission), teachers, caseworkers, foster parents, neighbors, mental health professionals, and others involved with the child.⁵

Beyond investigation, the GAL explains the court process to the child in age-appropriate terms, consults with the child before hearings and when significant events occur, assesses the child’s needs against available family and community resources, and works to minimize harm if the child testifies. The GAL also monitors compliance with court orders such as parenting plans or rehabilitative services.

Under Rule 40A (Custody)

The custody GAL’s duties are more targeted. Within a reasonable time after appointment, the GAL interviews the child (if age four or older) in a developmentally appropriate way, interviews each person with significant knowledge of the child’s history, and interviews the parties.⁶ The GAL tries to understand the child’s expressed wishes but is not bound by them. The written appointment order sets out the specific duties, and the GAL may conduct additional investigation they consider necessary and review the child’s relevant medical, psychological, and school records.

One point that surprises many parents: Rule 40A encourages the GAL to promote settlement and alternative dispute resolution. The GAL is not there solely to testify at trial. In many cases, the GAL’s involvement leads to a negotiated agreement before a contested hearing.

How the GAL Reports to the Court

This is where the two frameworks diverge most sharply, and where parents most often carry the wrong expectation.

Custody Cases: No Traditional Report

Under Rule 40A, the GAL does not submit a traditional “report and recommendations.” The commentary is explicit that the GAL is not a special master and should not submit one. Instead, the GAL may file a pretrial brief or memorandum the way any attorney would.³ If the GAL does prepare a written document, copies go to the parties’ attorneys by a court-set deadline, and the document cannot be provided to the judge unless all parties consent.⁶

When a written document is prepared, Rule 40A specifies its contents: a description of the investigation, an analysis of the expected facts, recommendations regarding the child’s best interests with reasons tied to the statutory custody factors, and any conflict between the GAL’s recommendations and the child’s preferences.

Juvenile Cases: Active Courtroom Advocacy

In abuse, neglect, and dependency cases, the GAL functions more like a trial attorney. The GAL participates in hearings, presents evidence, cross-examines witnesses, and advocates for what the GAL believes serves the child’s best interests.⁵ The GAL collaborates with DCS to verify claims and may recommend protective measures, psychological evaluations, or substance abuse assessments. Their findings carry significant weight in judicial decisions on custody, visitation, and whether parental rights should be terminated.

Requesting a GAL

Either parent in a custody or divorce case can file a written motion asking the court to appoint a GAL. The motion should explain why the child’s interests are not adequately protected by the existing parties and why separate representation is needed.⁷ The court holds a hearing on the request. If the judge grants it, the written order will specify the reasons for appointment, the GAL’s specific duties, and the scope of investigation. The court can also appoint a GAL on its own initiative at any stage without waiting for a party to ask.²

Access to Confidential Records

GALs often need records that would otherwise be shielded by privacy laws. Both HIPAA and state privacy rules allow healthcare providers to release protected health information to a GAL, but providers typically require a copy of the court’s signed appointment order naming the GAL and the child before releasing anything. Under Rule 40, the GAL’s investigative duties specifically include obtaining authorization for the release of information, including appropriate discovery orders.⁵ Under Rule 40A, the GAL may obtain and review the child’s relevant medical, psychological, and school records as provided by the appointment order.⁶

Challenging or Removing a GAL

There is no right to a peremptory change of a GAL in Tennessee. You cannot swap one out simply because you dislike a preliminary finding. Rule 40A does, however, give you a clear route if you have legitimate concerns. Allegations that the appointment is unnecessary, that the appointee is unqualified or unsuitable, or that the appointee has become biased should be raised without delay through a written motion to the trial court.³

If the trial court denies the motion, you can seek an interlocutory appeal under Tennessee Rules of Appellate Procedure 9 and 10. Timing matters. Sitting on a bias allegation and raising it only after an unfavorable recommendation rarely works. Courts expect these objections to be timely.

Who Pays

Custody Cases

In divorce and custody matters, reasonable GAL fees and costs are borne by the parties and allocated as the court deems equitable.² “Equitable” does not necessarily mean 50/50; a court may assign a larger share to the higher-earning spouse. The same statute allows the court to waive fees entirely for an indigent party upon motion.

Under Rule 40A, the GAL must file a written claim for payment within 30 days after the final order. Either party has 15 days to object. If no one objects, the court approves whatever portion of the claim it finds reasonable. If someone does object, the court holds a hearing before ruling on the fee.³ Hourly rates for private attorney GALs in custody cases vary by jurisdiction and experience, but generally track family law attorney rates in the same area.

Juvenile Cases

When a GAL is appointed in a juvenile case involving an indigent family, the state pays the fees through the Administrative Office of the Courts.⁸ For families that are not indigent, GAL costs in juvenile proceedings are assessed against the parties responsible for the child’s support.

Conservatorship Cases

GAL fees in conservatorship and other probate matters are set by the court under Tennessee Code 34-1-107. These costs are typically charged against the estate of the person for whom the fiduciary is being appointed.⁴

Immunity

Any GAL or CASA volunteer appointed by a Tennessee court is presumed to be acting in good faith and receives immunity from liability while acting within the scope of the appointment.² That immunity is one reason the motion-to-remove process matters. If you believe a GAL is performing poorly, the time to act is during the case, not after.

1
Justia. Tennessee Code 37-1-149 – Guardian ad Litem – Special Advocate – Appointment
2
Justia. Tennessee Code 36-4-132 – Appointment of Guardian ad Litem
3
Tennessee Administrative Office of the Courts. Rule 40A – Appointment of Guardians Ad Litem in Custody Proceedings
4
Justia. Tennessee Code 34-1-107 – Guardian ad Litem
5
Tennessee Administrative Office of the Courts. Rule 40 – Guidelines for Guardians Ad Litem for Children in Juvenile Court Neglect, Abuse and Dependency Proceedings
6
Tennessee State Courts. Rule 40A – Appointment of Guardians Ad Litem in Custody Proceedings
7
Tennessee Administrative Office of the Courts. Tennessee Rules of Civil Procedure Rule 7.02 – Motions and Other Papers
8
Justia. Tennessee Code 37-1-150 – Cost and Expense for Care of Child