Guardian ad Litem (GAL) involvement in SIJS cases

Posted by Kayla Brown

Special Immigrant Juvenile Status (SIJS) allows certain children who came to the United States from another country and cannot be reunified with one or both of their parents to obtain lawful permanent immigrant status. Juveniles seeking SIJS first begin in a local state court after abuse, abandonment, or neglect has occurred.

In Virginia, to qualify for SIJS five requirements must be met:

Prong 1: The child must be present in the United States

Prong 2: The child shall not be married

Prong 3: The child must be under the age of 18 at the time of filing of the petition with the court

Prong 4: A valid court order from the Juvenile and Domestic Relations District Court (J&DR) making all of the following findings:

A) that the child is dependent on the court or in the custody of a state agency or department, or another individual or entity appointed by the court;

B) that the child cannot be reunified with one or both of their parents due to abuse, abandonment, neglect, and/or a similar basis under state law; and

C) that it is not in the child’s best interests to return to their country of nationality or their/their parent’s last habitual residence.

Prong 5:  Must have sought the court order to obtain relief from abuse, neglect, abandonment, or a similar basis under state law and not primarily to obtain an immigration benefit.

Prong 1, Prong 2, and Prong 3 are relatively easy to understand. However, Prong 4 requires more attention. To initiate Prong 4 and to satisfy Prong 5, a petition for custody must be filed with the J&DR court in the appropriate venue. In the custody petition, there must be an allegation of neglect, abandonment, and/or abuse of the child, on whose behalf the custody petition is being filed. This allegation, in turn, will prompt the court to appoint a guardian ad litem to represent the child’s interests.

Virginia Code dictates “prior to the hearing by the court of any case involving a child who is alleged to be abused or neglected or who is the subject of an entrustment agreement or a petition seeking termination of residual rights, the court shall appoint a discreet and competent attorney at law as guardian ad litem to represent the child.”

Guardian ad litem (GAL) roughly translates as “guardian for the suit.” “The GAL must vigorously represent the child, fully protecting the child’s interest and welfare,” Rule 8.6 Virginia Supreme Court Rules. A GAL, therefore, is an attorney who acts as an investigator and advocates for the child’s best interest. In SIJS cases, the GAL will also help the court to determine whether abuse, neglect or abandonment occurred, and if it is safe for the child to return to their country of nationality.

The GAL will act as an investigator by conducting interviews with the child’s doctors, teachers, or other relevant parties in their investigation to determine the facts of the case.

The GAL will be able to speak with the child privately at the child’s school, home, or in the GAL’s office. However, the GAL may not speak with parents who are represented by legal counsel without the permission of the parents’ attorneys. During the GAL’s investigation, they may do home visits to determine the safety of the child’s living arrangements.

As an advocate for the child’s best interest, the GAL will be involved, as appropriate, in all pre-trial conferences and negotiations, including phone calls, formal or informal conferences, and mediation. The GAL will appear in court for hearings prepared to represent the child’s interests. Throughout the custody proceedings, the GAL will act as an attorney and can call witnesses, provide independent evidence, file motions, pleadings, and appeals, cross-examine witnesses, and offer exhibits. If the child is asked to testify, the GAL will help determine if the child should testify or if the court should make other methods available. If the child does need to testify, the GAL will prepare the child to do so.

If the child has expressed wishes contrary to the GAL’s recommendation, the GAL will notify the court of the child’s wishes. If the GAL believes the child to be uncooperative or the child’s wishes to be influenced by a parent or guardian, the GAL is obligated to inform the court of these beliefs as well. In certain circumstances, the GAL will request the court to appoint a separate counsel for the child.

Once the GAL has concluded their investigation, the GAL will make a recommendation to the J&DR Court. Often the GAL helps the court to determine what would be in the child’s best interest. In cases where the Court makes a final decision, and the GAL does not believe the decision is in the best interest of the child’s welfare, the GAL may appeal the decision.

In any situation, but especially in SIJS cases the GAL plays a very important role in the proceedings.

Every situation is different with varying levels of complexities. Navigating this process is often daunting. If you have any questions regarding this process and believe someone you know or love is eligible, please contact us.

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