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Working with a Guardian Ad Litem

Custody and parenting time issues can be among the most difficult Family Law matters to resolve. Situations and issues involving children often increase the emotional in toil in the divorce process, sometimes escalating hostilities between the parties, and often prolonging the litigation. Children are often the only witnesses to the acts, good or bad, of the parents. Therefore, children who are mature enough to express their own thoughts, feelings and desires in regard to custody and parenting issues are voices that need to be heard.

Putting a child in the middle of the litigation, however, either as witnesses on the stand or in a one-on-one interview with the judge, may not be in the best interests of the child. Those situations can be intimidating and impact children negatively. Children may feel torn between their parents, or they may unduly influenced by one or the other of the parents.

There is a less intimidating way of involving children in the process, to let their voices be heard in a more neutral setting in which they do not feel like they are being put in the middle of their parents and which will allow a more insightful look into the relationships of the children and parents in a more natural settings outside of the courtroom. This is usually accomplished by the Judge appointing someone to interview the children and the parents known as a guardian ad litem.

A Guardian ad Litem (GAL) is usually an attorney with family law experience who has completed special training for interviewing parents and children and making recommendations in the children’s best interest. The GAL acts as the eyes and ears of the Judge who cannot leave the bench in the American legal system.

The GAL may be assigned a specific investigative task by the court, but most often a GAL is expected to investigate generally the relationships between the parents and children. These tasks could be as simple as determining what hours of visitation are best for the children and can be as complex as determining who will have residential custody after the divorce and what parenting time the non-residential parent should enjoy.

The GAL does not represent either parent and is expected to look out only for the best interests of the children. The GAL will interview the parents, interview the children in an age appropriate fashion, talk with family or other third parties, consult with any professionals involved in the children’s lives such as teachers, doctors or counselors as warranted, and review relevant paperwork such as report cards, doctors’ diagnoses, court proceedings and even correspondence between the parties, from children, etc.

After GALs complete their investigations, they are usually expected to provide a report to the court with a recommendation. The reports may be oral or written. A Court is not obligated to follow the recommendation of a GAL, though the Court will usually give careful consideration to the GAL’s recommendations and opinions since the GAL is a neutral in the case, has investigated the matter as ordered by the Court and has gained more familiarity with the parties and the children than the Judge.

Overall, the GAL’s role is not to disturb harmony where there is harmony, or unnecessarily muddy waters, unless doing so is in the children’s best interest. The GAL’s role is purely to determine the best interest of the children according to the law and make those recommendations to the Court. While not everyone may like the GAL’s recommendations, the GAL has an important role in our litigation system and can often help resolve disputes in a less costly fashion than constant litigation, pro-longed hearings or hiring a custody evaluator.

The GAL’s fees are typically paid by the parties, but occasionally the GAL will be appointed by the Court on a pro bono basis when the parties lack sufficient funds to pay an attorney. The GAL’s fees may be the responsibility of one party or divided between the parties. The Court reviews and approves the fees sought by the GAL.

If a GAL is assigned to your case, you will want to discuss the assignment with your attorney. Attorneys are expected to inform the GAL of the appointment, provide the relevant pleadings to the GAL and cooperate. Parents are also advised to be cooperative, as a lack of cooperation is likely to be viewed negatively.

Generally, I recommend that you make an effort to contact the GAL soon after the appointment to set up an initial meeting, pay the retainer (if required), and ask the GAL if there are any documents or evidence he or she wants regarding your matter. The GAL may send out a questionnaire for you to complete prior to the first interview. The GAL will typically meet with the parties involved and the children to gain an overall understanding of the situation and from there the GAL will determine how to proceed, as the GAL is in control of his or her own investigation.

The GAL is a critical part of the family law practice. A GAL is a buffer between the children and the court (and sometimes the parents) that protects the children in the process A GAL appointment is a great responsibility, one that is not taken lightly. As an approved GAL, I take my role very seriously and make a conscious effort to determine what is in the children’s best interest in every case, with careful thought and without bias. Working with a guardian ad litem, rather than against him or her, is the best way to present yourself for a positive recommendation.