Right to attorney ad litem

Key_development Question_mark

04/18/2023, Legislation, Termination of Parental Rights (Private) - Children

Minor Adoptees


Prior to the enactment of HB 101 in 2023, adoptees in contested adoption matters had the right to a guardian ad litem while adoptees in uncontested matters could be appointed a GAL, as per Ala. Stat. § 26-10A-22(b).  Although the former version of the adoption code did not define "guardian ad litem," the section title ("Attorney participation and appointment of attorney for the adoptee or other party") and Comment to the section (“In a contested adoption, appointment of an independent attorney is mandated to ensure the best interest of the minor is protected.”) suggested strongly that the GAL was an attorney.


HB 101 repealed Chapter 10A of Title 26, replacing it with the Alabama Minor Adoption Code.  Under that Code, adoptees in contested matters, including contested cases transferred to the juvenile court pursuant to Section 26-10E-3, still have the right to a GAL pursuant to Ala. Stat. § 26-10E-23(a),(b), while adoptees in uncontested matters may be appointed a GAL for “good cause shown ... upon a motion of a party or [the court’s] own motion” under Ala. Stat. § 26-10E-21.  However, while "guardian ad litem" remains undefined, the section titles and Comments lack the references to attorneys that were present in the prior version.  Thus, it is unclear as of this writing whether the GAL must be an attorney. 


In contested matters, the fees for a GAL “shall be payable by the contestant and the petitioner proportionately as determined by the court,” and “[t]he court shall have the power to enforce any award of fees to the [GAL] through contempt or other enforcement proceedings.” Ala. Stat. § 26-10E-21(c)-(d).


The new law also adds that a court may appoint a “court representative” for the adoptee in matters related to pre-placement investigations under Ala. Stat. § 26-10E-19(m).  A "court representative" need not necessarily be an attorney, however, and is defined as "[a]n individual appointed in an adoption proceeding trained in law, health care, counseling, social work, or other specialty, who is an officer, employee, or special appointee of the court, and has no personal interest in the proceeding." See Ala. Stat. § 26-10E-2(6).


Adult Adoptees

An adult meeting the criteria enumerated in Ala. Stat. § 26-10F-6 may be adopted.  An adult adoptee is entitled to an appointed guardian ad litem “[i]f the court has reason to believe that the adoptee may be unable to give consent” as required by the code. Ala. Stat. § 26-10F-7(a)(3).  Adult adoptees are entitled to a GAL in contested matters pursuant to Ala. Stat. § 26-10F-12(b).


As is the case with the Minor Adoption Code discussed above, Chapter 10F of the Alabama Adult Adoption Code does not define “Guardian ad litem”, and neither the section titles nor Comments suggest the GAL must be an attorney.  Thus, it is unclear as of this writing whether the GAL must be an attorney.

Appointment of Counsel: categorical Qualified: yes