Rule 7.1.Representation by Guardians Ad Litem and Attorneys of Child
Last amended March 24, 2014 · Last verified September 12, 2026
Full Text of Rule 7.1
Notes
REPORTER'S NOTES: Rule 7.1 is added simultaneously with the adoption of significant revisions to Rule 7. The purpose is to make clear the different circumstances that govern appointment of a guardian ad litem (GAL) for a child, not a subject of the proceedings, who is to testify. This rule is derived from former Rule 7(e)(2) which made provisions for testimony by such a child. The title of the new rule and Rule 7.1(a) make clear that, like former Rule 7(e), the new rule applies to proceedings under both Rule 4 and Rule 9. Rule 7.1(b) carries forward the language of former Rule 7(e)(2), with the addition of language requiring the party seeking to call the child to request permission. This provision only makes explicit the necessary implication of the former rule and gives the parties and the court flexibility as to how and when the question whether to call the child should be addressed. Essentially the distinction between new Rule 7.1(b) and new Rule 7(d) is that, when the child is not a subject of the proceedings, 15 V.S.A. § 594(b) does not apply, and the court is to proceed as it would in any case to balance the need for and relevance of the child's evidence against issues of competency. As stated in the Reporter's Notes to the 2006 Amendment adding former Rule 7(e)(2), “[T]he court is unlikely to invoke these protections [provided by the final clause of new Rule 7.1(b)] in the case of a minor child who is a casual fact witness and not part of the household or otherwise related to the parties or the situation.” Rule 7.1(c) and (d) adapt the provisions of new Rule 7(e) and (f) to apply to the responsibilities and role of a GAL when one has been appointed under subdivision (b). Rule 7.1(d) makes clear that the primary purpose of a GAL in the case of a child not subject to the proceedings is support for the child, rather than assistance to the court. The provisions of subdivisions (c) and (d) concerning the appointment and role of a GAL if one is appointed are added for clarity and consistency with new Rule 7(e) and (f), do not affect the discretion concerning appointment that the court had under former Rule 7(e)(2), and should not increase the number and cost of appointments.
Amendment History
[Adopted Jan. 22, 2014, eff. March 24, 2014.]
Plain-English Summary
Rule 7.1 covers the other child in a family case — a minor who may have something useful to say but is not a subject of the proceeding. It applies to all proceedings under Rule 4 and Rule 9, including abuse prevention cases, and unlike Rule 7 it carries no limit to cases in which a child is a subject of the proceeding. A party who wants to call such a child as a witness has to request permission from the court, and that request is a precondition to calling the child at all.
Permission is not a formality. The court may allow the testimony if it finds that the testimony is necessary to assist the court in determining the issue before it, that the evidence sought is not reasonably available by any other means, and that it is otherwise admissible. Even then the court can allow the testimony on whatever conditions it considers appropriate to protect the child, and one of those conditions can be appointing a guardian ad litem or an attorney to represent the child. The appointment order carries whatever directions the court thinks the child's protection requires.
When a guardian ad litem is appointed, the job centers on the child. Before a conference or pretrial proceeding, the guardian gives the court and the parties a list of the activities carried out under the order and may make a brief oral statement if the court asks, which is not evidence. At any evidentiary hearing where the child is to testify, the guardian must be present to provide assistance and support for the child as the order directs. The guardian can be called as a witness only if an attorney for the child has been appointed and the guardian's testimony would be directly probative of a contested fact no other person could be employed or subpoenaed to prove, and the court may appoint a replacement if that happens.
Frequently Asked Questions
Do I need the court's permission to call a child who is not part of my case?
Yes. A party who seeks to call a minor child who is not a subject of the proceeding must request permission of the court. Asking is a required step, not a courtesy.
What does the court have to find before that child can testify?
Three things. That the testimony is necessary to assist the court in determining the issue before it, that the evidence sought is not reasonably available by any other means, and that the evidence is otherwise admissible. If the court is satisfied on all three, it may allow the testimony on conditions it sets.
Will the child witness get a guardian ad litem or an attorney?
Maybe. The rule leaves it to the court. Appointing a guardian ad litem or an attorney is one of the conditions the court can attach when it allows a child who is not a subject of the case to testify, and the court decides whether the child's protection calls for it.
What does a guardian ad litem do for a child witness?
Support, above all. If a guardian ad litem has been appointed, the guardian must be present at any evidentiary hearing where the child is to testify, to provide assistance and support for the child as the appointment order directs.
Before a conference or pretrial proceeding, the guardian also submits a list of the activities carried out under the order and may give a brief oral statement if the court asks for one. That statement is not evidence.
How is this different from calling my own child as a witness?
The dividing line is whether the child is a subject of the proceeding. Rule 7 governs a child who is, and it requires a hearing, appointments in defined circumstances, and a finding that the value of the testimony outweighs the potential detriment to the child. Rule 7.1 governs a child who is not, and the court asks instead whether the testimony is necessary, unavailable by other means, and otherwise admissible, then decides what protection the child needs.