The Role of the Guardian ad Litem
If you are facing a contested custody battle, you may be wondering what the role of the Guardian ad Litem is. Basically, a Guardian ad Litem or Law Guardian represents the child, striving to protect the best interests of the child, and providing an unbiased opinion on behalf of the child. For more information, read the input from the legal expert below:
Can law guardians initiate court actions? Question: I've had sole custody of our two sons - ages 12 and 10 for the last 8 years. My youngest son has shared that every time they go to dad's house, he insists on showing them emails I have allegedly written (from the sounds of it, the emails are actually falsified) to demonstrate how mom 'lies' to them and then proceeds to grill the kids on who they think is the more truthful parent. The kids are threatened with punishment if they object to this ludicrous exercise or are yelled and screamed at if they give the 'wrong' answer. My son told me this makes him feel uncomfortable and pressured, and he doesn't want to see dad any more. He then specifically requested to speak to the law guardian appointed for our last court hearing. Can law guardians initiate court actions, or would I have to file against my ex-husband to modify visitation before the law guardian would be able to become involved? Brette's Answer: I don't know what the rules and procedures in your state are, but most likely you would need to file for modification of the parenting plan and the Law Guardian could then appear and express concerns. This is definitely inappropriate behavior by your ex and does need to be stopped. It is unhealthy for your kids to be subjected to this kind of grilling. Good luck. » Return to top Will a Guardian ad Litem be appointed if we go to court? Question: My ex husband now wants joint physical custody and a shared parenting arrangement after 8.5 years of our current arrangement. He tells me that if I chose not to work this out through mediation, and we go to litigation, that the court would appoint a guardian at litem to resolve this issue. Is this true? Brette's Answer: First of all, a court would be reluctant to change the custody situation after 8 years unless there has been a change in circumstances that would merit it. Mediation is a good option, but should you go to court, yes, a guardian ad litem would be appointed but he or she is just an attorney appointed to represent the children. The GAL may make a recommendation in the case, but the judge is the one who makes the decision. Are GALs appointed when the state places kids in foster care? Diana's Question: Are children who are placed in foster care by the state welfare department able to be appointed a Guardian ad LITEM? Brette's Answer: There is usually a child advocate of some kind appointed to represent these kids in the abuse/neglect proceedings. » Return to top Should I expect a decision after the GAL's report or a trial? Shannon's Question: We have already gone through a bitter divorce. He had already spent up $10k on his lawyer. I went alone and LOST custody. New allegations with DCFS finally brings us back to court. We were assigned a GAL. Should I expect a decision after the GAL's report or a trial? How does that work? Brette's Answer: The GAL report is not determinative, and in many jurisdictions the GAL doesn't even issue a report and instead acts as an attorney representing the interests of the children. If you can't reach a settlement, you go to trial. » Return to top Topic: The Role of the Guardian ad Litem Vicki's Question: My biological son has his own attorney, will she go into court and speak for my son? Brette's Answer: In most states, children in divorce or custody cases have Guardians ad Litem or Law Guardians appointed to represent them. These are attorneys that are paid by the state and selected by the judge. Their role is to represent the child in the proceedings. Too often custody cases turn into personal struggles between the parents and sometimes the needs of the child can be ignored in parents' attempts to get revenge on each other or "win". A law guardian can offer a fresh perspective. Your child's law guardian will most likely want to meet him at home or in her office just to get to know him. She will probably want to talk to you and your spouse and may want to visit your homes. Her role is not to take sides or point fingers, but to be the one person in the courtroom who is focused solely on what is best for your child. Law guardians cross-examine witnesses called by the parents' attorneys and can call their own witnesses. In some states they make a recommendation to the judge about how they think the custody portion of the case should be decided. The law guardian can find out what the child wants, if he or she is old enough to have an opinion, but most of the time, the law guardian makes his or her own decision about what is best. Your child won't appear in court, but at some point the judge might want to talk to him privately in his office. The majority of law guardians are excellent. This is not a job that is high paying, so the people who do it, do it because they genuinely care about children. Law guardians can often be the only voice of reason in settlement negotiations. Attorneys for the parents have a clear agenda, but the law guardian is interested only in creating a good outcome for the child and may be the only person who can offer an unbiased perspective. Law guardians are often instrumental in creating settlements and are often the person who works out the small but nagging problems involved with custody and visitation. You should be open and honest with your child's law guardian. » Return to top What if the other parent is able to fool the GAL? Natalie's Question: My husband and I are trying to get sole custody of his son. He and his ex-wife have joint custody, but she has been doing a really bad job parenting their son. My step son has Asperger's syndrome, and she doesn't take the time to help him and give him the attention that he needs. He has been doing poorly in school, and last marking period had F's in all subjects. We have been more involved and trying to get all his missed homework and projects done every other weekend when he is with us. When we went to court this past Monday, the mediator appointed a Guardian Ad Litem to evaluate the situtation. Now his ex is dressing up her house, and I'm sure will be the "perfect mother" while all this is going on. I'm afraid that her act will work, and then after the court is no longer involved, she will go right back to the way things have always been. My step son is 12 years old, and he doesn't want to live with us, even though everyone involved at the school thinks it would be a much better situation for him. How likely is it that she could fool the Guardian Ad Litem, even though we have a paper trail of all the problems? Brette's Answer: First of all you need to understand that guardians are lawyers with special training in child custody situations. They are experienced and are difficult to fool. Appearances don't matter at all. The guardian is going to be looking at what has been happening with this child. Encourage the guardian to speak to the teachers and counselors involved with your stepson. Make a list of all the projects and homework you do with your stepson each weekend. Pull out copies of his report cards to show her. Point out all the ways you have tried to make a better life for him. His age is important - at 12 his opinion does matter, however it will depend on how deeply he is affected by the Asperger's. The more severe his case, the less likely will he be considered to be mature enough to make a choice about where he wants to live. » Return to top Can the GAL share a parent's concerns with the other parent? Lauren's Question: Can the guardian ad litem share a parents list of concerns about the other parent with that parent? Brette's Answer: There is no attorney client privilege between the GAL and the parent, so nothing that is said is privileged and it can be shared. Now, whether it is wise to do so is another question. Often the GAL is the one who is able to broker a settlement, so inflaming things by doing a "he said, she said" isn't going to help the situation usually. On the other hand, I have found that sometimes it helps to put it all on the table and try to get some straight answers. Is this guardian ad litem's behavior unprofessional? Shirley's Question: I do not know what to do with the guardian ad litem in my case. I have custody of 2 boys with my ex having reasonable visitation. He continues to do stupid stuff with the kids. 2 kids in one seatbelt, letting a 12 year old drive... it goes on and on. The gal always minimizes everything the ex does (like he doesn't understand not to do it). He knows what he is doing. One of the boys he has physically abused and he doesn't have to go on visits. The GAL tells me that by not sending the child on visits I'm taking away his father figure. The child I'm speaking of is actually MY grandson, who is not related to my ex. When my grandson was telling her what my ex had done to him she actually told him he was lying. Isn't this a tad unprofessional? Brette's Answer: Yes of course, all of this is ridiculous. Your attorney should be standing up for you and presenting your perspective on all of this to the court. Topic: Conflicts With The Guardian Ad Litem Margaret's Question: I filed for a divorce because my ex was verbally and physically abusive, and I wanted a better life for my kids. During our divorce, we had a guardian ad litem evaluation. I felt like the guardian ad litem dragged out the process and seemed unprofessional in her conduct. I feel that she was unable to be fair and unbiased about our situation, misinterpreted much information, and did not follow standards. Even though I got custody of the kids, I want to file a complaint against the GAL. My lawyer advices me not to, but what do you think? Brette's Answer: I was a law guardian (same thing as a guardian ad litem) when I practiced law and it is one of the most difficult roles to play in the entire case. Since you got custody of your children, I'm not sure I understand what your complaint is. The guardian offered her opinion as to what was in the best interest of the children, which ended up being exactly what you wanted. Many parents find it difficult to work with the guardian because they resent having someone intrude on their personal lives in that way. It is intrusive, but if parents are unable to agree how to share their time with the children, the judge needs someone to go into the home and determine what would be best for the children. Guardians are paid a pittance - often only 10% of what the parents' attorneys make per hour - and yet they do the real field work in the case. As in any profession, there are bad ones, but if the case turned out in your favor it makes no sense to complain. » Return to top Will the case be reheard if I file a complaint against the GAL? Question: If I file a formal complaint against a GAL, based on their report and recommendations and it is found to be valid will the case be reheard in court? The GAL that was appointed by the court did not base her report on full and accurate facts. I motioned the court to review my concerns that I had with the report and recommendations, but represented myself and the case was basically dismissed. I do have sole legal and sole physical custody of my child, but restrictions have now been lifted against my ex and I fear for my child's safety. I supplied the GAL with my child's therapist's contact and therapist's reports which were never reviewed and my child expressed concerns that were never mentioned in the GAL's report. My child has expressed her fears and concerns now that these restrictions have been lifted, but now I no longer know what to do being as the GAL did not fulfill her obligation to serve as the voice of my child. My child is almost 14 years old now, and I believe her arguments are very valid. Please advise me on what I should do and how I should proceed with matters. Brette's Answer: I would suggest you consult with an attorney. It's very difficult to do what you are proposing. If there was evidence the court needed to hear, it was up to you to make sure it was submitted. Can I file an appeal and request to have this GAL removed? Question: If you know for a fact that a GAL stood before a judge and flat out lied to the judge, can you file an appeal and request to have this GAL removed? Brette's Answer: No. Appeals have to do with matters of law, not matters of fact. Can I fire the Guardian Ad litem? Ayah's Question: I hired a GL on the advise of my attorney. As it turns out the GL and my attorney use to work together and this case has became a money pit. My question is how can I fire the GL? Brette's Answer: Since the Law Guardian or Guardian ad Litem is appointed by the court, the court must remove him or her. You need to present your concerns to the court. On what grounds can a guardian ad litem be replaced? Louise's Question: Do I have grounds to replace a guardian ad litem? I have been in a case for the past year, and here are some of my concerns with the GAL:
There is also more, but these are some of the main reasons - so at what point would it be substantial enough to remove them? Brette's Answer: Courts are very reluctant to replace guardians ad litem unless there has been misconduct. If you want to do this, first you need to think about how this is going to affect your relationship with the GAL if you are not successful. If things are bad now, they likely will become worse. To replace the GAL, you need to make a motion to the court explaining your reasons. The judge is the one who decides whether or not to do this - all you can do is ask and explain your position. Simply the fact that he or she does not agree with you is not enough. You should also know that many GALs do not do home visits or even meet their clients (which personally I think is wrong). You need to show this GAL is biased or has badly mishandled the case. Topic: Hiring a new Guardian Ad litem Erica's Question: How can a new Guardian Ad Litem be appointed? The "wealthy" custodial guardians are paying for the Guardian Ad Litem to represent the child in question. Furthermore, a trust fund has been set up for this Law Guardian and there appears to be a tight friendship among the "wealthy" grandparent and Ad Litem. I'm thinking this is wrong? What can be done about this? Brette's Answer: GALs are appointed by the court. Sometimes they are paid by the state, but in cases in which one or both of the parties can afford it, costs are paid by the parties. One thing you need to understand about GALs is that they're not there to be neutral, they are there to form an opinion about what is best for the child, and communicate that to the court. By the very nature of their job, one party will probably like them and one party will probably not like them. If you think your GAL is not being fair, not considering all the evidence, or mishandling the case, talk to your attorney, or if you don't have an attorney, bring it up with the court. The problem is that the court selects attorneys to be on the GAL panel and so has in a way pre-screened them and will be unlikely to believe there is a problem. But if there is a problem, you do need to speak up about it. Getting the GAL replaced is difficult, but it can be done if there is clear evidence of inappropriate conduct. » Return to top Can I request a new Guardian Ad litem if there's a conflict of interest? Rachael's Question: I have a stepson that I have raised since he was born. The mother got custody after 3 years. I am appealing this decision. My question is the Guardian ad Litem that was appointed is the same one for her other child that she lost custody of. Can I ask the court for a new guardian ad litem because of conflict of interest and the mother has had contact with the guardian ad litem for 2 years. Brette's Answer: You can ask but it will be up to the judge. If it is denied, you can appeal it. When siblings have separate interests, the court should appoint different GALs. Can the Guardian Ad Litem request the address of a parent? Linda's Question: Can the Guardian Ad Litem request the address of a parent when it is their turn to have the child? It seems the other parent should know where child is and what kind of living arrangements are made when the child is there. Brette's Answer: The GAL should have access to both parents' addresses. A good GAL will do home visits and see both homes. Not all make the time to do this however. You can request of the court that the other parent have to notify you of his/her address and where the child will be during visitation. Can the GAL make me move out of my fiancé's house? Debora's Question: My legal battle continues after 2 1/2 yrs. I am out of money and barely make enough to feed and clothe my son. Instead of moving into a shelter or being on the street, I moved in with my fiancé (we plan on marrying as soon as the divorce is final). There is a guardian ad litem involved in the case. Can she put me out on the street because of my living arrangements? Because of the size of his home, we all have to share a bedroom, and my son sleeps with me in the bed or on a futon. Brette's Answer: There's nothing wrong with living with someone. The guardian may be concerned about sharing a room. You need to explain to her though that you are sensitive to the arrangement and that there is certainly nothing inappropriate happening in front of your child. Your guardian has no authority to tell you where you can live. She can only make recommendations to the court about custody. Buddy up to her and get her on your side. » Return to top Can the Law Guardian make me change child therapists? Janne's Question: Can the law guardian make the custodial parent chance the child's therapist? Brette's Answer: No, the Law Guardian has no authority over decisions like those. However, the Law Guardian has influence with the court. If the Law Guardian feels you aren't taking your child to a therapist who is helpful, she could certainly mention this in her recommendations to the court. Jill's Question: My ex-husband is trying to prove that I have mental problems, even though doctors records prove other wise. We have a law guardian and I am the mother. I am only able to see the children every other weekend because of my schedule at work. I am trying change it but it may take awhile. My ex was emotionally and physically abusive to me, but nobody (even my lawyer) can fight this, even though I have therapists stating otherwise. What shall I do? Brette's Answer: I think you should talk to the law guardian and sign authorizations for her to talk to your therapists. It might also be good for your children to see a therapist and give the law guardian access to him or her as well. Try to document everything that happens. Talk to your lawyer about your concerns. If you don't feel you're being taken seriously, see another attorney. » Return to top Denise's Question: I need a resource to find out if my two teenage girls can file a motion with the court to change their current custodial situation. My ex-husband and I have joint custodial custody - 50/50 and the teenage girls go back and forth with no feeling of permanency at either place. My girls were told by other friends that when they turn 14, they can choose which parent they live with. We are in the state of Kansas. Brette's Answer: You should consult an attorney in your area. If your girls had a Law Guardian or Guardian ad litem, he or she may still be able to file for a change. Most likely you will need to file for a change and cite as your reason that this is what the girls want and then an attorney would be appointed to represent them. » Return to top Topic: When one parent is not the biological father Kelsie's Question: My friend's parents are getting a divorce, but her dad is not her biological dad (he adopted her). He is mean and some times abusive, and she doesn't want to see him after the divorce is final. What could she do? Brette's Answer: It depends on how old your friend is. If she's over the age of 13, it is likely the court would weigh her opinion very heavily in making a custody determination. However, in order for her voice to be heard, her mother needs to make sure a law guardian or guardian ad litem is appointed by the court for her. If your friend feels she is in danger from her father, she should call the police or call a child abuse hotline. You can find a local number in your phone book or use the national number, 1-800-4-A-CHILD to report the abuse and get the help she needs to make it stop. What should I do if the GAL downplayed the abuse claims? Audrey's Question: During my two year custody fight, the GAL only had contact with me on three different occasions. After finding out that both our kids were being physically and sexual abused by a friend during visitation with my ex, the GAL didn't contact me to see what was going on and continued to allow my ex take the children back around their abuser. When we went to trial, she lied about my actions and never asked me about the medical examination on the kids. The judge gave my ex standard visitation and said he could take the kids back around their abuser. What should I do about this? My lawyer told me not to do anything, but just sit back and pray nothing happens to my kids. Brette's Answer: It's hard to fix this after the fact. There are lots of things that should have happened. Doctors should have testified. The kids should have been in therapy and the therapist should have testified. Photographic evidence should have been introduced. At this point, I recommend you work with your attorney and pursue investigation of abuse if it happens again. Get the county socials services involved if you believe abuse is happening. The GAL is waiting to file his report until my ex is off probation. Christine's Question: The guardian ad litem who was appointed to my case wants to wait to file his report until after my ex is off probation. My ex is on probation for domestic assault against me while I was pregnant with our child. It feels to me that the guardian is doing this to help my ex's case to get joint custody, which in my opinion is not being impartial. I feel like he is not looking out for the best interest of my daughter. What should I do? Brette's Answer: The GAL can file the report whenever he or she chooses, within the time frame set by the court. Either way, your ex will done with probation by the time the court rules, so it doesn't make much difference. The court will still be aware of the situation and will take it into consideration. What can I do if the GAL won't review my supporting evidence? Neila's Question: How I can ensure that a law guardian do her job so she can know the facts and make informative decisions in representing the children's best interest. To date she doesn't seem to have done anything other then read the action for divorce, show cause, and my response as well as the evaluators report. I have put together a full detailed report with supporting documentation of my concerns, which she would not accept. She has made no attempt to verify any allegations from either party and has no interest in finding out if the children are being manipulated as well as frightened (as I believe and can prove they are). I do not want an adversarial relationship with this woman, but she seems to have her mind made up based on one's stature and not on any issues of importance. Please advise. Brette's Answer: Unfortunately there are some law guardians who do not take a very active role. It sounds like you have done the right things. Have you invited her to your home to meet your child? I would suggest doing that. That way you could have an informal talk with her. » Return to top Would a Guardian ad Litem help in issues after the divorce? Randi's Question: Do I need a Guardian ad litem for my 9 year old daughter? I've been divorced for over 4 years. Each visitation with her father (2-3 times a year) she gains an excessive amount of weight. (over 12lbs in 6 wks for example). I've talked with him about this and yet he still lets this happen. Her doctor tells me it could lead to medical problems. Also my daughter tells me she doesn't want to go, and asks me not to make her. Yet her father says she has fun while she's there. I feel the weight issue is straight forward neglect, but would that hold in court as neglect? Would having a GAL be of help? Brette's Answer: That is concerning. Maybe you should seek a modification that would offer shorter more frequent visitations. Having a GAL appointed as part of the process would help with the case, but a GAL does not continue to monitor things once the court issues an order. Good luck. My lawyer wants to appoint a GAL to represent me Alice's Question: I am divorcing the same man for the second time (1980-1989 and 1992-2008), am independent and have 2 grown children. My lawyer would like a guardian ad litem to represent me due to my depression and anxiety. My fear is I will lose ALL control in the decision making process as it proceeds the day of court. What should I take into consideration when making this decision? Brette's Answer: A GAL is put in place to represent your best interests. It sounds like your attorney just wants to protect himself. You can certainly object to a GAL, but that makes your working relationship with your own lawyer kind of difficult. If you aren't comfortable, you can certainly find a new attorney. It really is going to depend on the approach your GAL takes - how involved you are in the decisions. » Return to top © WomansDivorce.com. All rights reserved. Related Articles:
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