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Next friend, as a legal term, originates in common law. It refers to a person acting on behalf of a child or a person under a disability in a civil case. A next friend is not a party to the lawsuit, but is required to be included in the case caption of court pleadings, because the law considers children and persons under a disability to be without the legal capacity to sue on their own behalf. A person acting as next friend has no control over any proceeds from the lawsuit and no authority to assume custody of the child.
Often a next friend is a relative or family member. A modern trend in the US is for courts to appoint a guardian ad litem to represent a minor or incapacitated person involved in legal proceedings. In situations involving minors, the court appoints a guardian ad litem for delinquency hearings, adoption proceedings, or abuse and neglect cases in family court. In cases of adults under a disability, this person may be part of an advocacy group that assists an appointed lawyer.
In juvenile cases, the guardian ad litem must be a lawyer. Constitutional law requires that a minor alleged to have committed a criminal offense have legal representation. The guardian ad litem has the same legal duties to the child as she would to an adult client in the areas of loyalty, confidentiality, and zealous representation. However, in terms of any sanctions considered by the court, the guardian ad litem must also consider what is in “the best interests of the child.”
In abuse and neglect cases, children are parties to the family court case along with their parents. The court appoints a guardian ad litem to represent their interests. Children of a young age are rarely involved in the actual court proceedings. The guardian ad litem reviews court reports, interviews the parties, and then makes recommendations to the court regarding the necessary actions to protect the children’s safety and well being. At hearings, the guardian ad litem participates fully with the other lawyers, making opening and closing statements, cross-examining witnesses and presenting evidence.
A guardian ad litem also serves in adoption cases. In many jurisdictions, courts use a Court Appointed Special Advocate (CASA) in adoption cases and other family court cases. Like a next friend, a CASA is not a party to the proceedings or a lawyer, but serves as an officer of the court. The CASA is independent of the lawyers or parties to the case. The court’s appointment order gives the CASA access to all records, including evaluations, medical records and court reports.
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