TENNESSEE COMPILATION OF SELECTED LAWS ON CHILDREN, YOUTH AND FAMILIES, 2010 EDITION
TENNESSEE CODE ANNOTATED
Title 34 Guardianship
Chapter 1 Guardianships and Conservatorships Generally
34-1-107. Guardian ad litem. -
(a) (1) Except as otherwise provided in this subsection (a), on the filing of a petition for the appointment of a fiduciary, the court shall appoint a guardian ad litem to represent the respondent. The court also may appoint a guardian ad litem to represent the interest of the minor or disabled person in any proceeding brought by the fiduciary. If the respondent is represented by adversary counsel who has made an appearance for the respondent, no guardian ad litem shall be appointed.
(2) The court may waive the appointment of a guardian ad litem if the petitioner or at least one (1) of the petitioners for the appointment is:
(A) A parent of the minor for whom a guardian is sought;
(B) A minor who has attained fourteen (14) years of age; or
(C) An adult respondent.
(3) The court may waive the appointment of a guardian ad litem if the court determines the waiver is in the best interests of the minor or disabled person.
(b) If the guardian ad litem is to be appointed, the appointment shall be made no later than ten (10) days from the date the petition for the appointment of the fiduciary was filed.
(c) The person appointed guardian ad litem shall be a lawyer licensed to practice in the state of Tennessee. If there are insufficient lawyers within the court's jurisdiction for the appointment of a lawyer as guardian ad litem, the court may appoint a nonlawyer.
(d) (1) The guardian ad litem owes a duty to the court to impartially investigate to determine the facts and report the facts to the court. The guardian ad litem is not an advocate for the respondent but has a duty to determine what is best for the respondent's welfare.
(2) In each proceeding, the guardian ad litem shall:
(A) Verify that the respondent and each other person required to be served or notified was served or notified;
(B) Consult with the respondent in person as soon as possible after appointment;
(C) If possible, explain in language understandable to the respondent the:
(i) Substance of the petition;
(ii) Nature of the proceedings;
(iii) Respondent's right to protest the petition;
(iv) Identity of the proposed fiduciary; and
(v) Respondent's rights as set forth in § 34-3-106; and
(D) Determine if the proposed fiduciary is the appropriate person to be appointed.
(3) In a proceeding for the appointment of a conservator, the guardian ad litem shall investigate the physical and mental capabilities of the respondent.
(4) In a proceeding seeking the appointment of a fiduciary to manage the respondent's property, the guardian ad litem shall investigate the:
(A) Nature and extent of the respondent's property;
(B) Financial capabilities of the proposed fiduciary; and
(C) Proposed property management plan.
(e) The order appointing the guardian ad litem shall authorize the guardian ad litem access to records of the respondent in any financial institution and to review medical records, and permit the guardian ad litem to discuss the respondent's physical and mental conditions with any physician, psychologist or other health care provider who may have pertinent information.
(f) The guardian ad litem shall make a written report to the court at least three (3) days prior to the date set for hearing the matter, which time period may be waived in the judge's discretion. The written report shall provide the court with the results of the guardian ad litem's investigation. The guardian ad litem's report shall specifically state whether:
(1) (A) The respondent wants to contest:
(i) The need for a fiduciary;
(ii) Merely the person to be the fiduciary; or
(iii) Neither;
(B) If the respondent wants to contest any portion of the proceeding and the guardian ad litem's opinion is that there should be a fiduciary appointed, the guardian ad litem shall identify the adversary counsel or indicate there is none and request the appointment of an attorney ad litem;
(2) A fiduciary should be appointed and, if so, whether:
(A) The proposed fiduciary should be appointed; or
(B) Someone else, identified by the guardian ad litem, should be appointed;
(3) The proposed property management plan should be adopted and, if not, what changes should be considered.
(4) The respondent will attend the hearing and, if, in the opinion of the guardian ad litem, it is not in the respondent's best interest to attend, why.
(g) Unless the court orders otherwise, the guardian ad litem has no continuing duty once an order has been entered disposing of the petition that caused the guardian ad litem's appointment.
(h) When investigating financial records of a respondent, the guardian ad litem shall be the customer within the meaning set forth in title 45, chapter 10, known as the Financial Records Privacy Act.
[Acts 1992, ch. 794, § 8; T.C.A. § 34-11-107; Acts 2004, ch. 771, § 1; 2007, ch. 26, § 1.]
http://www.tn.gov/tccy/tnchild/34/34-1-107.htm
2010 Tennessee Code
Title 36 - Domestic Relations
Chapter 4 - Divorce and Annulment
36-4-132 - Appointment of guardian ad litem.
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36-4-132. Appointment of guardian ad litem.
(a) In an action for dissolution of marriage involving minor children, upon its own motion or upon the motion of either party, the court may appoint a guardian ad litem for any minor child of the marriage.
http://law.justia.com/codes/tennessee/2010/title-36/chapter-4/36-4-132/
RULE 40A: APPOINTMENT OF GUARDIANS AD LITEM IN CUSTODY PROCEEDINGS.
http://www.tncourts.gov/rules/supreme-court/40a
SECTION 2. APPLICABILITY
This Rule applies to all custody proceedings in Tennessee, regardless of the court in which the proceedings are filed, and to all custody proceedings pending on or commenced after the effective date of this Rule.
SECTION 3. GUARDIAN AD LITEM APPOINTMENTS
(a) Consistent with Tennessee Code Annotated section 36-4-132, in a custody proceeding the court may appoint a guardian ad litem when the court finds that the child′s best interests are not adequately protected by the parties and that separate representation of the child′s best interests is necessary. Such an appointment may be made at any stage of the proceeding.
(b) Courts should not routinely appoint guardians ad litem in custody proceedings. Rather, the court′s discretion to appoint guardians ad litem shall be exercised sparingly. In most instances, the child′s best interests will be adequately protected by the parties.
(c) In determining whether appointing a guardian ad litem is necessary, the court shall consider:
(1) the fundamental right of parents to the care, custody, and control of their children.
(2) the nature and adequacy of the evidence the parties likely will present;
(3) the court′s need for additional information and/or assistance;
(4) the financial burden on the parties of appointing a guardian ad litem and the ability of the parties to pay reasonable fees to the guardian ad litem;
(5) the cost and availability of alternative methods of obtaining the information/evidence necessary to resolve the issues in the proceeding without appointing a guardian ad litem; and
(6) any factors indicating a particularized need for the appointment of a guardian ad litem, including:
(i) the circumstances and needs of the child, including the child′s age and developmental level;
(ii) any desire for representation or participation expressed by the child;
(iii) any inappropriate adult influence on or manipulation of the child;
(iv) the likelihood that the child will be called as a witness or be questioned by the court in chambers and the need to minimize harm to the child from the processes of litigation;
(v) any higher than normal level of acrimony indicating the parties lack of objectivity concerning the needs and best interests of the child;
(vi) any interference, or threatened interference, with custody, access, visitation, or parenting time, including abduction or risk of abduction of the child;
(vii) the likelihood of a geographic relocation of the child that could substantially reduce the child′s time with a parent, a sibling, or another individual with whom the child has a close relationship;
(viii) any conduct by a party or an individual with whom a party associates which raises serious concerns for the safety of the child during periods of custody, visitation, or parenting time with that party;
(ix) any special physical, educational, or mental-health needs of the child that require investigation or advocacy; and
(x) any dispute as to paternity of the child.
