Discretionary appointment of GAL for child in certain circumstances

Pursuant to Kan. Stat. Ann. § 23-2219(b), “The court shall appoint a guardian ad litem to represent the minor child if the court finds that the interests of the child and the interests of the petitioner differ. In any other case, the court may appoint such a guardian ad litem.”  However, the guardian ad litem seemingly need not be an attorney. See Kan. Sup. Ct. R. Rule 110A.

In interpreting a predecessor statute containing the exact same statutory language, a Kansas Court of Appeals held that the adjudication of a parentage petition without inquiring as to whether the child was entitled to a guardian ad litem violated the child’s due process rights. See Ferguson v. Winston, 996 P.2d 841 (Kan. Ct. App. 2000).  The appellate court reversed and remanded the parentage adjudication and stated:

The rights and interests of a child in his or her parentage are due process rights which cannot be terminated or affected without notice and an opportunity to be heard… We do not, by this order, mean to infer that a child must always have an independent attorney and must always be independently made a party to a parentage action. We do hold, however, that when that child is an adult, he or she must be made a party to the action and must be represented by counsel before his or her parentage is determined. In the event the child is not an adult, the trial court must consider the issues set out in 38–1125, and we strongly urge that in every such case a guardian ad litem be appointed.

Ferguson, 996 P.2d at 846.