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Legal Access

A minor in Alabama is defined as a person ``who is under nineteen years of age and has not otherwise had the disability of minority removed.''202

Alabama Rule of Civil Procedure 17(c) (2001) holds that whenever ``a minor has a representative, such as a guardian or like fiduciary, the representative may sue in the name of the minor.'' If a minor defendant, however, does not have a duly appointed representative, the court shall appoint a guardian ad litem for her and may make any other orders it deems proper for the protection of the minor.203 Moreover, if a minor is or should be made a party defendant, "the court may direct further process to bring the minor into court or appoint a guardian ad litem (GAL) for the minor without service upon the minor or upon anyone for the minor.``204

Whenever a GAL is necessary for a minor, ''the court in which the action is pending must appoint some person who is qualified to serve in that capacity to represent the minor in the capacity of an attorney or solicitor.`` In addition, the court must not ''select or appoint any person who is related, either by blood or marriage within the fourth degree, to the plaintiff or the plaintiff's attorney, or to the judge or clerk of the court, or who is in any manner connected with such plaintiff or such plaintiff's attorney, or who has been suggested, nominated, or recommended by the plaintiff or the plaintiff's attorney or any person for the plaintiff."205 If the GAL is appointed for the representation of a minor fourteen years of age or over, the minor may, ``within thirty days after perfection of service upon the minor in such cause,'' have her choice of a GAL, but only if the minor's cause is ``certified by an officer authorized to take acknowledgments.'' If the minor fails to nominate a GAL within that thirty day period, or before any hearing is scheduled on the matter, whichever is earlier, the court shall appoint the GAL previously provided.206 Any action against a minor who has a general guardian will still require an appointment of a GAL.207

The power of the court to appoint GALs can be found in at least eight Alabama Code sections, which refer to the appointments of GALs in particular types of hearings including, but not limited to, appointment; compromise of debts; sales of property; accountings; settlements; and removal. For example, under Alabama Code 26-2A-52 (2001), dealing with the appointments of GALs in guardianship and protective proceedings, "at any point in the proceeding, a court may appoint a GAL to represent the interest of a minor if the court determines that such representation of the interest otherwise would be inadequate." In its commentary to the aforementioned provision, Alabama legislators established that the court has very broad discretion in appointing a GAL for a minor, and such appointment can be made at any time and for virtually any reason.208 Moreover, the court is not required to set out its reasons for appointing a GAL as a part of the record.209

However, in certain proceedings, appointment of a GAL is not mandated by the legislature, and a minor can explore other avenues in accessing the state legal system. For instance, in proceedings for a waiver of parental consent to performing an abortion on a minor, a minor who has not obtained "consent from either of her parents or legal guardian, may petition, on her own behalf, the juvenile court, or the court of equal standing, in the county in which the minor resides or in the county in which the abortion is to be performed for a waiver`` of the parental consent requirement.210 ''Notice by the court to the minor's parents, parent or legal guardian [is not] required or permitted."211 In addition, the requirements and procedures under the aforementioned statute apply and are available to minors whether or not they are residents of the state of Alabama.212 The minor also may participate in court proceedings on her own behalf.213 The court must advise "her that she has a right to be represented by an attorney and that if she is unable to pay for the services of an attorney one will be appointed for her."214 If the minor chooses to self-represent, the pleadings, documents, and/or evidence she files with the court ``are liberally construed by the court so as to do substantial justice,'' and any hearsay evidence she wishes to submit is admissible.215 Moreover, during her proceedings, a court must insure that her identity is kept confidential.216

In sum, neither Alabama statutory law, nor its common law clearly elucidate exactly what options a minor in that state has with respect to accessing the legal system. The rules seem to differ depending on the nature of the proceedings in which a minor is a party.



Footnotes

...202
Ala. Code 26-2A-20(11) (2001).
...203
Id.
...204
Id.
...205
Ala. R. Civ. Proc. 17(d) (2001).
...206
Id.
...207
Id. (Committee Comments on 1973 Adoption).
...208
Ala. Code 26-2A-52(Comment)(2001).
...209
Id.
...210
Ala. Code 26-21-4 (a)(2001).
...211
Id.
...212
Id.
...213
Ala. Code 26-21-4 (b) (2001).
...214
Id.
...215
Id.
...216
Ala. Code 26-21-4 (c) (2001).

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