On behalf of The Marks Law Firm, L.L.C. posted in Child Custody on Thursday, May 30, 2013
A common question we receive from clients concerns the appointment of a guardian ad litem, so we thought we would take two blog posts to cover all of these related requests for information.
A guardian ad litem (GAL) is a special representative or advocate for the interests of a child in a case where the health, safety or welfare of the child is at issue. Section 452.423 of the Missouri Statutes provides that a court can – but does not have to – appoint a guardian ad litem in cases where custody of a child is a contested issue. The court must appoint a GAL where child abuse or neglect is alleged. Besides cases of divorce, legal separation and child custody, a GAL will be appointed in cases of child abuse or neglect where a party seeks an order of child protection.
Pursuant to statute, the GAL has the following duties: (1) to be the legal representative of the child at the hearing, and may examine, cross-examine, subpoena witnesses and offer testimony; (2) prior to the hearing, to conduct all necessary interviews with persons having contact with or knowledge of the child in order to ascertain the child’s wishes, feelings, attachments and attitudes, including, if appropriate, interviewing the child; and (3) to request the juvenile officer to cause a petition to be filed in the juvenile division of the circuit court if the guardian ad litem believes the child alleged to be abused or neglected is in danger.
Is the GAL a lawyer? He or she may be, but is not required to be. Under our system, a volunteer advocate may serve as a GAL, so long as that person has the necessary training and access to the assistance of an attorney. Whether a volunteer or an attorney, all GALs must receive at least 12 hours of training from a certified program of the circuit court.
Why does the court need a GAL? This is perhaps the most frequent question we receive about the GAL, and perhaps the most important. We have an adversary system of justice, even in the family court, where each party has the option of retaining counsel who will advocate for their particular desired outcome in the case. In a child custody situation, each parent will generally speak highly of himself or herself and critically of the other parent, but neither can give a specific, unbiased voice to the best interests and wishes of the child. To give the child that unbiased voice, the court seeks a GAL. The court does not have the ability or authority to conduct its own investigation; it relies exclusively on the evidence presented to it by the parties. To help the court hear from the perspective of the child, our system has created the GAL. In hotly contested custody cases, or cases where one party alleges abuse or neglect, having a “neutral” third party representing the interests of the child in theory should help the court get a more balanced and nuanced view of the facts, given that each parent may have his or her own agenda, including making misleading, inaccurate or false accusations about the conduct of the other parent. The GAL will report to the court his or her findings with regard to custody and any allegations of abuse and neglect, providing not only necessary information – which can include conducting scheduled or unscheduled home visits and interviews – but also recommendations that would further the best interests of the child, including whom the GAL found more credible on disputed issues of fact.
Who pays for the GAL? This is usually the second most frequently asked question about the GAL. The court has the discretion to order one or both parties to pay for the reasonable fees of the GAL, who must keep track of his or her hours and produce a bill for the court and the parties. Often the court tries to have each party contribute equally to the payment of the GAL, but if the court finds a strong disparity in ability to pay or subsequently finds that the services of the GAL were not actually needed, the court can place the burden of fees principally or even solely on one party.
We have covered the basics of what a GAL is and is supposed to do in this post. In the next post, we will cover the impact of the GAL on your court case and what remedies you have to remove a GAL.
If you have questions about a guardian ad litem, contact us – we can help.