Guardian ad litem

Hello, in divorce proceedings, the court appoints a guardian ad litem for the children due to a conflict of interest arising between the child (or children) and their parents. The role of the guardian ad litem is to represent the best interests of the child, or more precisely, to prevent situations where parents might not make decisions in the child’s best interest.

In divorce proceedings, the guardian ad litem is an employee of the Office of Labor, Social Affairs and Family (the Office for Social and Legal Protection of Children and Social Guardianship) appointed by the court solely for the duration of the divorce proceedings. It follows that the guardian ad litem is appointed exclusively for court purposes within the divorce proceedings.

It is important to emphasize that upon appointment, the guardian ad litem does not become the child’s legal guardian, but rather the child’s representative in court proceedings, as the child, due to their intellectual and emotional maturity, is neither authorized nor capable of appearing independently before the court.

In practice, this means that the guardian ad litem examines the child’s family and financial circumstances, gathers information about the interest and capability of both parents regarding personal care for the child, and assesses the options for child care by both parents, taking into account the child’s views, interests, and needs.

According to Section 31(2) of Act No. 36/2005 Coll. on the Family, as amended: “Neither parent may represent their minor child in legal acts where a conflict of interest could arise between the parents and the minor child, or between minor children represented by the same parent; in such a case, the court shall appoint a guardian for the minor child to represent them in the proceedings or for a specific legal act…”

In specific situations, the court will also appoint a guardian ad litem if the minor child has no legal guardian (parent) or if the legal guardian cannot, for a serious reason, represent the minor child in the proceedings or for a specific legal act.

Yes, a guardian ad litem is appointed for minor children in cases provided for by law. This follows from Section 31(2) of the Family Act, according to which: “Neither parent may represent their minor child in legal acts where a conflict of interest could arise between the parents and the minor child, or between minor children represented by the same parent; in such a case, the court shall appoint a guardian for the minor child to represent them in the proceedings or for a specific legal act.” The guardian ad litem is therefore appointed for court purposes, for example in divorce proceedings, and their role is to represent the minor child in proceedings which the child, due to their intellectual and emotional maturity, is neither authorized nor capable of appearing in independently before the court.

It follows from the above that the guardian ad litem represents exclusively minor children, i.e., individuals who have not yet reached the age of majority, or the 18th year of an individual’s life. Until reaching the age of 18, a person is considered a minor, and therefore, a guardian ad litem is appointed to represent them in divorce proceedings.

In practice, this means that the guardian ad litem examines the child’s family and financial circumstances, gathers information about the interest and capability of both parents regarding personal care for the child, and assesses the options for child care by both parents, taking into account the child’s views, interests, and needs.

In terms of legal literature (Horváth, E.: Family Act Commentary 2014): “Section 31 does not contain even an illustrative list of persons who could be appointed to the position of a guardian ad litem. As a rule, it will be the Office of Labor, Social Affairs and Family as the body for social and legal protection of children.”

According to Section 28 of Act No. 40/1964 Coll., the Civil Code (hereinafter referred to as the “CC”), “if legal representatives are required to manage the property of those they represent, and if it is not an ordinary matter, court approval is required for the disposal of the property.”

According to Section 30 of the CC, “if a conflict of interest arises between the legal representative and the person represented, or a conflict of interest between those represented by the same legal representative, the court shall appoint a special representative.”

According to Section 31(2) of Act No. 36/2005 Coll., the Family Act (hereinafter referred to as the “FA”), “Neither parent may represent their minor child in legal acts where a conflict of interest could arise between the parents and the minor child, or between minor children represented by the same parent; in such a case, the court shall appoint a guardian for the minor child to represent them in the proceedings or for a specific legal act (hereinafter referred to as the ‘guardian ad litem’).”

According to Section 119 of Act No. 161/2015 Coll., the Civil Non-Adversarial Procedure Code (hereinafter referred to as the “CNAPC”), “the court shall approve a legal act performed by a legal representative on behalf of a minor if it is in the best interest of the minor.”

The appointment of a guardian ad litem in inheritance proceedings comes into consideration, for example, in a situation where a parent, as the minor’s legal representative, performs a legal act on the minor’s behalf by refusing an inheritance that would otherwise fall to their child (e.g., a mother disclaims/refuses a portion of an inheritance on behalf of her minor child, which was bequeathed to the child by their grandmother). According to the opinion expressed in the judgment of the District Court Bratislava V, Case No. 68P/72/2022 dated October 4, 2022: “Proceedings for the approval of an act on behalf of a minor child, consisting of the refusal of an inheritance on behalf of the minor child, are proceedings in which the legal representatives (parents) are, as a rule, excluded from representation (…). The approval of an act by which a biological parent refused an inheritance on behalf of a minor child constitutes an act that is not an ordinary matter, in which a conflict of interest may arise between the parents and the minor child; and the fact that the parent of the minor child refused the inheritance does not automatically mean that refusing the inheritance on behalf of the minor child as well is in line with the minor child’s best interests. In order to decide on the approval of a legal act of refusing an inheritance performed on behalf of a minor heir by their legal representative, the court must obtain data on the nature, type, and value of the decedent’s property and the amount of their debts (R 46/1977). Only on the basis of such findings can the court conclude whether the approval of the legal act of refusing the inheritance by the legal representative on behalf of the minor child is indeed in the minor child’s best interest. (…) In view of the above, and also within the meaning of Section 31(2) of the Family Act, it is appropriate that in proceedings for the approval of a legal act of refusing an inheritance by a legal representative on behalf of a minor heir, the minor is represented in the proceedings by a court-appointed guardian, a so-called guardian ad litem.”