Opinion
No. 48086
Decided January 31, 1967.
Divorce action — Parties — Minor children — Interests adverse to both parents — Guardian ad litem appointed.
Where minor children of parties to a divorce action appear to have an interest in the controversy adverse to both parents, and where such minor children are necessary parties to a complete determination or settlement of the case, the court may, upon its own motion, make such children additional parties in the action and appoint a guardian ad litem for them.
JOURNAL ENTRY — JOINDER OF PARTIES DEFENDANT
Upon the court's own motion, and it appearing to the court that the minor children of the parties to the within action, Brian D. and Brad Lee Barth, have an interest in the within controversy adverse to both plaintiff and defendant; and that, further, they are necessary parties to a complete determination or settlement of the questions contained therein,
NOW, THEREFORE, BE IT ORDERED that Brian D. Barth, aged three (3) years, and Brad Lee Barth, aged one (1) year, be and hereby are made parties-defendant in the within action.
MEMORANDUM
The concept of making minor children of a pending divorce parties to the action and appointing to represent them a guardian ad litem is, insofar as this court knows, a novel concept in the state of Ohio.
It is well recognized by this court, and given legislative recognition in some states (for example: Wisconsin), that in some divorce cases, the interests of the minor children are, or may be, substantially different from either or both of the parents. As a matter of fact, the best interests of the children may be antagonistic to the desires of either or both parties. In such cases, the child may well receive inadequate protection in the adversary system of divorce.
A child, by definition, is inherently unequal in a contest based upon a system of law — the adversary process — that contemplates a contest of reasonably equal parties.
The examination of the investigation in this cause, together with the charges and counter-charges expressed by the pleadings and at the hearings in open court, satisfy this court that this is one of those cases where the children need protection other than that which can be otherwise given by either or both of the parents. It is for precisely this purpose that the procedure of guardian ad litem was conceived and is to be executed.
It can hardly be argued that these children claim an interest in the controversy which may be adverse to either or both parties; nor can it be seriously argued that this cause can be effectively resolved without determination of the questions of custody, visitation, and support. In all of these questions, the children are the object of focused attention. Section 2307.19, Revised Code.
The appointment of guardian ad litem is made pursuant to Sections 2307.16 and 2307.17, Revised Code, and the provision for assessment of compensation for services is dictated by Section 2307.14, Revised Code.
Because of the uniqueness of the role of the guardian ad litem in this case, the court would indicate several areas to which he might properly direct his attention:
1. A determination as to the full extent of legal rights of these children in this case.
2. Advocacy of their rights concerning the merits of the divorce case.
3. Advocacy of their rights concerning the issue of their welfare while the case is pending.
4. Advocacy of their best interests in the matter of custody.
5. Advocacy in the matter of visitation.
6. Advocacy in the matter of support, including questions of provision for medical care and provisions for additional education — recognizing the responsibility, if any, of both parents in this matter.
The court might suggest that the guardian ad litem advocate the cause of the children upon the premise that, to the extent practical, they should receive the totality of benefits that might have been expected if it had not been for this divorce action.
The above enumeration is not intended to limit the concern of the guardian ad litem.
It is further expected that the guardian ad litem will do any and all things deemed by him necessary to accomplish the intent and purpose of the within orders.
PRAECIPE
TO THE CLERK:
Issue summons in the within cause to the Sheriff of Stark County, Ohio, for service upon Harold W. Barth and Evelyn R. Barth, parents and next friends of Brian D. and Brad Lee Barth, minors under the age of fourteen (14) years — there being no guardian.
Endorse thereon "order making minors additional parties-defendant."
Make same returnable according to law.
ORDER APPOINTING GUARDIAN Ad Litem
It appearing that Brian D. and Brad Lee Barth, minors under the age of fourteen (14) years, have been previously made parties in the within action and that, upon application of the court, acting as friend of said minors,
IT IS ORDERED that Ronald K. Bennington be and hereby is appointed guardian for the infants in the within action, and that the cost thereof be fixed hereinafter by the court and taxed as court cost in the within cause.