The Role of the Guardian ad LitemIf you are facing a contested custody battle, you may be wondering what the role of the Guardian ad Litem is.
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 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 feel 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 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. 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 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. » Return to top © WomansDivorce.com. All rights reserved.
Related Articles: Brette Sember is a former family and
matrimonial attorney and mediator, nationally recognized expert, and author of
many books including
The Divorce Organizer & Planner,
No-Fight Divorce, and
How To Parent With Your Ex.
This column provides general information about the various aspects of divorce. It is not intended to take the place of legal counsel and should not be considered personal legal advice. For specific recommendations concerning your situation, please retain experienced legal counsel. WomansDivorce.com and Brette Sember disclaim any liability from any claim arising from any information contained in this column. This column is not a substitute for legal advice. Divorce
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