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F I S C A L I M P A C T R E P O R T

SPONSOR SJC

DATE TYPED 3/3/05

HB

SHORT TITLE Guardian Ad Litem Appointments

SB 203/SJCS/aSFl#1

ANALYST Wilson

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

$0.1

General Fund

SOURCES OF INFORMATION

LFC Files

Responses Received From

Administrative Office of the Courts (AOC)

Attorney General’s Office (AGO)

SUMMARY

Synopsis of SFl#1 Amendment

The Senate Floor amendment #1 to the Senate Judiciary Committee substitute for Senate Bill 203

removes the requirement an attorney must have a minimum of five years experience in the prac-

tice of law, with at least fifty percent of that practice having been in family law or domestic rela-

tions matters in order to be a guardian ad litem appointed on or after January 1, 2006.

In addition, when a guardian ad litem has been appointed before custody or time-sharing is de-

cided by the court, a child six years of age or older shall have the right to petition to give testi-

mony is changed to a child fourteen years of age or older.

The amendment also makes clean up changes.

Synopsis of Original Bill

The Senate Judiciary Committee substitute for Senate Bill 203 adds requirements for the ap-

pointment and conduct of guardians ad litem in contested child custody cases. It amends Section

40-4-8 NMSA 1978 comp. to prohibit a court from delegating the ultimate decision regarding

“time sharing” of the child to the guardian. The guardian at litem’s professional fees shall not

Senate Bill 203/SJCS/aSFl#1 -- Page 2

exceed $5 thousand unless approved by the court for good cause.

When deciding whether to appoint a guardian ad litem, the court must consider several new fac-

tors which include the wishes of the parents, contentiousness of the parties, the ability of the par-

ents to pay for the guardian, the age of the child, and the usefulness of the guardian to the court.

The bill requires that a guardian ad litem appointed on or after January 1, 2006 shall:

•

be an attorney licensed to practice law in New Mexico;

•

have a minimum of five years experience in the practice of law, with at least fifty percent

of that practice having been in family law or domestic relations matters; and

•

possess such other qualifications as determined by the New Mexico supreme court to in-

clude training in child development.

The bill adds that in all cases where a guardian ad litem has been appointed before custody or

time-sharing is decided by the court, a child six years of age or older shall have the right to peti-

tion to give testimony

Every order appointing a guardian ad litem shall:

o

state the guardian ad litem's duties with particularity either as determined by the court or

by the procedure set forth in the New Mexico rules of evidence;

o

include the duration of the appointment, which shall not exceed one year unless extended

by the court for good cause;

o

state the professional fee the guardian ad litem is authorized to charge and provide for the

rendering of itemized monthly statements to the parties and counsel;

The bill specifies that a guardian ad litem's duties and responsibilities will include the following:

Conducting interviews with the child face to face outside the presence of both parents and

counsel if the child is age six or older; conducting interviews of both parents, conducting

interviews of any preexisting therapist for the child after obtaining the necessary author-

ity for the release of information; and conducting such other interviews of persons at the

guardian ad litem's or the court's discretion after obtaining the necessary authorization for

the release of information.

Submitting a written report of investigation, findings and recommendations as may be di-

rected by the court, which shall be filed of record at least fourteen days before it is to be

entertained by the court with copies provided to both parents, each parent's counsel, all

parties and the court, except in case of emergency.

Reporting to the court the child's wishes, regardless of recommendations;

The bill requires that an order appointing a guardian specify his or her duties, fee, duration of

appointment not to exceed one year unless extended by the court for good cause, that the guard-

Senate Bill 203/SJCS/aSFl#1 -- Page 3

ian has no authority to obligate the parents to pay for a therapist without advance approval of the

parents or the court upon hearing, and must specify that the guardian will serve as a witness if

called by the court or either parent.

The bill also revises the mediation procedures and expands the definition of domestic abuse, for

purposes of Section 40-4-8, to include such conduct as “repeatedly driving by a residence or

workplace”, stalking, telephone harassment, and other conduct.

Significant Issues

The intent of the bill appears to put into statute guardian ad litem requirements and procedures as

well as clarifying the mediation process in order to ensure fair and uniform treatment to children

and adults involved in a highly emotional domestic relationship.

The AGO states the bill protects parents from paying guardian ad litem and therapist fees with-

out their consent or approval of the court after hearing.

FISCAL IMPLICATIONS

There will be minimal administrative costs for statewide update, distribution, and documentation

of statutory changes. Any additional fiscal impact on the judiciary would be proportional to the

enforcement of this law.

ADMINISTRATIVE IMPLICATIONS

The new restrictions regarding appointment of guardians ad litem will have to be implemented

by the courts. The courts will also have to interpret and implement the new mediation require-

ments imposed by this bill.

DW/sb:yr:lg