After a Divorce, Which Parent Hires a Lawyer to Represent Their Child in a Personal Injury Case?

In a divorce case, the court has a legal and moral obligation to insure that it acts in the best interests of any child over which it has jurisdiction. One of the court’s most important decisions is designating which parent will have primary responsibility for caring for the child. This parent is usually identified as the custodial or the primary custodial parent.

Except within a limited set of circumstances, the law considers a child to be incapable of making an informed decision to enter into a legally-enforceable agreement such as a contract. By extension, this “disability” would prohibit a child from hiring a personal injury lawyer Milwaukee WI can count on to represent him or her in a personal injury lawsuit. Since the court would, in all probability, have previously awarded custodial authority to one of the parents, that same parent would have the authority to retain legal counsel on behalf of their child.

Recovering Damages

Since it is unlikely that only one parent (custodial or otherwise) would have covered all of a child’s medical expenses following an accident, both parents could reasonably expect to be reimbursed for their “out of pocket” contributions to their child’s medical care. In such cases the courts have generally taken one of three possible courses of action:

  • Let the parents “work it out on their own.”
  • Leave the matter of reimbursement to the discretion of the custodial parent.
  • Appoint a guardian ad litem for the child until the personal injury case is resolved and all payments or reimbursements have been made.

Of the three options listed above, the first two are all but guaranteed to be the least agreeable to all interested parties. It is the third option, the appointment of a guardian ad litem, that usually results in the least amount of ill-will.

Guardian Ad Litem

In the case of a guardian ad litem, or a guardian “during a lawsuit,” the court appoints a third party to assist the court in the court’s role as the child’s advocate. This is until such time that the child is old enough to make his or her own decisions. In the situation being discussed here, the court could allow the custodial parent to select an attorney to represent the child but then appoint that same attorney as guardian ad litem in order to assure the court that the child’s interests are being protected. The court could then order that the guardian ad litem be responsible for payment of medical bills, the reimbursement of each parent, and that any remaining settlement funds be held in trust until the child reaches maturity.

To recap, and in the absence of a binding agreement stating otherwise, the primary custodial parent has the legal authority to enter into contracts and other types of binding agreements on behalf of a minor. In most states, the non-custodial parent has the right to have his or her opinions heard by the court that made the original custody award. It is, however, the court that retains the final responsibility for decisions that affect the wellbeing of the child. It is also the court that retains the authority to modify or even nullify a decision made by the child’s custodian.

Every situation is unique and the varying circumstances can result in exceptions to any of the above. If you or your family members are considering hiring an attorney on behalf of your child, you may benefit from an initial consultation, for which most attorneys do not charge. During that consultation, you can present your particular case and an assessment of your legal options.


HTThanks to our friends and contributors from Hickey & Turim SC for their insight into personal injury practice.

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