Can My Child Bring a Lawsuit, or Can I Sue on Behalf of My Child?
In New Jersey, a “minor” is anyone who is younger than 18 years of age. “Minors” are not independently permitted to file lawsuits in New Jersey because they are not seen by the Court System as possessing the legal wherewithal to make important decisions regarding their rights. For instance, legal “Infants” (another designation for anyone under 18 years of age) in New Jersey are also unable to enter into binding contracts.
Appointment of Guardian Ad Litem
However, although minors cannot bring lawsuits on their own in New Jersey, Minors can file lawsuits before they reach eighteen (18) years of age if they initiate legal proceedings under the supervision of a “Guardian Ad Litem.” Ad Litem is a latin term meaning “for the lawsuit” and the designation refers to an individual that is appointed to protect the interests of the minor for one case only. This is in contrast to a legal “guardian” which connotes a different relationship.
The Guardian Ad Litem is basically an adult that the Court entrusts to help the minor through the process of litigation.
Who Can Serve as Guardian Ad Litem
Under New Jersey Court Rule 4:26-2(b), any natural parent of the child may serve as guardian ad litem. In fact, in a personal injury action, any natural parent can sue on behalf of his or her minor child without obtaining prior court approval, simply by filing a Complaint that sets forth the parent-child relationship and the parent’s consent to act as the guardian ad litem.
In non-personal injury actions, the minor litigant’s parent or custodian must make a written request to the court, known as a petition, in order to be appointed as the guardian ad litem for that specific case. See R. 4:26-2(b)(2).
Once appointed, the Guardian Ad Litem has a special responsibility, known in the law as a “fiduciary duty” to act at all times in the best interests of the minor on whose behalf the case is proceeding. This means that the Guardian Ad Litem cannot put him or herself in a position that represents a conflict of interest with the minor that he/she is representing in the court case.
Can the Guardian Ad Litem Receive Compensation for Representation?
Yes, under Court Rule 4:26-2(c) a guardian ad litem is permitted to charge a fee for his or her services that were rendered in connection with helping the minor through the court case. The guardian ad litem however must make a written request to the Court for allowance of his/her fee that includes a detailed and itemized accounting of any fees they seek to charge or expenses they incurred on behalf of the minor to commence the case.
Special Statute of Limitation for Minors
Because minors in New Jersey are not permitted to file lawsuits without the supervision of a guardian ad litem, the law provides them with a special exception to the normal statutes of limitation (the deadline by which a case must be filed) that apply to adult litigants.
The statute of limitations for minors is “tolled” or “extended” by law so that it does not start to run until the minor’s eighteenth (18th) birthday. This means that in a personal injury action with a two (2) year statute of limitations, the statute of limitation or deadline for the minor to file a lawsuit does not expire until the minor’s twentieth (20th) birthday. This “tolling” of the statute of limitations applies with the same force and effect no matter how long ago the event giving rise to the Complaint occurred.
This means, for instance, that even if the minor was hurt when he or she was one (1) year old, they have until they turn twenty (20) to bring a lawsuit for personal injuries that they sustained!
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To learn more about helping your minor child file a lawsuit, personal injury and malpractice lawsuits and civil litigation in general, reach out to our office today at 201-925-0660 for a free consultation. The Law Office of Alexander Schachtel represents clients with personal injury cases, medical malpractice and legal malpractice cases, and general commercial, civil and business litigation across Jersey City, Hoboken, Hudson County and Northern and Central New Jersey and New York City.