Abuse, Neglect and the Need for a Guardian Ad Litem

On behalf of The Marks Law Firm, L.L.C. posted in Child Custody and Guardian Ad Litem on Wednesday, July 9, 2014

We frequently have clients ask about the role of, and the need for, a guardian ad litem in a child custody dispute. Recently, the appellate courts in Missouri have issued some opinions that give some guidance on this issue.

By statute, the use of a guardian ad litem (GAL) remains in the discretion of the trial judge. A party may ask for the appointment of a GAL, but the trial judge need not grant that request. Section 452.423.1 states, “In all proceedings for child custody or for dissolution of marriage or legal separation where custody, visitation, or support of a child is a contested issue, the court may appoint a guardian ad litem.” The key word “may” leaves the appointment to the discretion of the court.

Why would a judge want the assistance of a GAL? A GAL serves several functions for the court. First, the GAL gathers information specifically regarding the relative fitness of the parties as parents. Through interviews and data gathering, the GAL can form a better picture for the court about the strengths and weaknesses of each parent and how those strengths and weaknesses would play out in different custodial arrangements. Second, the GAL represents the children as their advocate and can interview the children and give voice to their concerns separate from what the parties say about themselves (almost always good) and the other parent (frequently critical). Finally, the GAL can make a recommendation to the court based upon his or her unique position as to what custodial arrangement would best serve the interests of the children and the statutory command of frequent and meaningful contact with both parents.

All of this sounds great – why wouldn’t a judge always appoint a GAL? First, the parties may not want a GAL, either because they believe they can present the issues themselves or they do not want the additional expense of another attorney. Second, family court judges have a great deal of experience hearing custody cases and they do not always require the assistance a GAL provides, relying instead on their own skills.

Sometimes, though, a judge has no choice about appointing a GAL. Section 452.423.2 states, “The court shall appoint a guardian ad litem in any proceeding in which child abuse or neglect is alleged. “ It would appear from the statute that any time a party raises an issue of neglect or abuse, the court automatically must appoint a GAL. However, recent cases have backed away from this practice. First, if a parent wanted a GAL (for whatever reason) and had no success, making an allegation of abuse or neglect would become a way around the discretion of the court and might encourage too many false allegations of abuse or neglect. Second, the appellate courts have held that only when the allegations are sufficiently detailed and the failure to appoint a GAL would prejudice the best interests of the child must a trial court appoint a GAL.

This week, the Eastern District of the Missouri Court of Appeals, in Landwehr v. Lanwehr, found no prejudice when a court failed to appoint a GAL after a party in a motion to modify alleged that mother’s alcohol use impaired her judgment and rendered her a danger to the children, whom she had (according to father) neglected. The trial court did not appoint a GAL, received evidence about the alcohol use, and modified joint custody to sole custody for father. The Eastern District did not think a GAL had to be appointed because simply stating in a pleading the word “neglect” is not a detailed enough allegation, and alcohol use in and of itself does not translate into abuse. The appellate court noted that the court considered the issue and in fact modified custody to protect the interests of the child. The Eastern District compared this case to one two months ago where detailed allegations of domestic abuse were raised but a GAL not appointed, with the result that the children remained in the custody of the abusive parent. That situation required a GAL because of the combination of specificity and prejudice.

So, simply mentioning or raising an issue of neglect or abuse will not suffice to demand an appointment of a GAL; rather, a party must make specific allegations that detail the neglect or abuse and connect it to the children in a way that their best interests are compromised.

If you have questions about the use of a GAL in a custody case, contact us – we can help.