The Guardian Ad Litem And My Case (Part II)

On behalf of The Marks Law Firm, L.L.C. posted in Child Custody on Friday, May 31, 2013

In the previous post, we discussed the basic “who” and “what” of the guardian ad litem, or GAL, in a child custody case. In this post, we address the “why.”

Since appointing a GAL when abuse or neglect is not at issue is completely discretionary, how often do judges actually appoint a GAL on their own initiative? The short answer is, it varies from judge to judge. Some judges realize that the GAL is a burdensome expense on the parties and believe that they can sort through the evidence without assistance. Other judges like having a third party conducting additional investigation and providing recommendations not colored by one party’s perspective. Still other judges like the idea of having an additional source of evidence for the ultimate decision regarding custody.

If the court decides to appoint a GAL, can a party object? Yes, but the court will likely overrule the objection. So, once a judge decides on having a GAL, the parties, like it or not, need to adjust their legal strategies to accommodate the third attorney in the case (more on this in a minute).

When is it a good idea to seek a GAL? A party can request the court appoint a GAL at any time. Usually, a party will do so when he or she believes having a third party intervene on behalf of the child will help his or her case. For example, if a parent believes the other parent has issues that place the child in a less than suitable environment readily discoverable upon a home inspection or interview, it would be advantageous to seek that intervention. In that situation, the other parent will likely oppose the GAL appointment as not necessary and too costly. Again, the general preferences of the judge toward a GAL will determine the likelihood of using a GAL.

What if I do not like the GAL the court appoints? Each party has the ability to strike for any reason only one appointment of a GAL, in which case the court will appoint a different GAL. If the party does not like that GAL, the party will be out of luck with one exception: a party may always seek to remove a GAL for cause, which would require proof that the GAL has a bias or a conflict of interest. However, if the removal fails, and the GAL remains, that attempt at removal may not be lost on the GAL. Generally, each court has a registry of attorneys requesting appointments as a GAL, and some courts tend to appoint a certain subset of attorneys that they prefer because of past experience. Lawyers can also agree to suggest to each several potential persons to the other side, and if one name appears on both, go with that person as GAL.

In theory, the GAL should be a neutral and unbiased party seeking only to further the best interests of the child. The Missouri Supreme Court has published specific guidelines to govern GAL behavior. These guidelines stress that a GAL must be thorough in his or her investigation, and must gather sufficient information from both parents, the child, and all other parties who can contribute to the outcome of the case, including relatives, teachers, physicians and childcare providers.

Ultimately, all clients want to know whether having a GAL will further the goals of their case. To answer this question requires knowledge of your specific goals; however, we can provide some general points. First, appointing a GAL makes the litigation more complex, more costly and usually lengthier. The reasons should appear obvious – having a third party conducting interviews and investigations takes additional time and expense, and also adds an additional “unknown” that could lead in unanticipated directions, including requests for psychological exams. Second, if you feel the need to have an additional voice you believe will be favorable to your view of the case, a GAL could provide that assistance, but you have no actual control over the recommendations of the GAL. Given these important caveats, we have found that the actual need for a GAL is less than most perceive at the outset of the case and could possibly backfire strategically.

If the court does appoint a GAL, you should follow your attorney’s advice and fully cooperate with the GAL. A favorable impression from the GAL can further your case; lying can only hurt your case.

As you can see, a guardian ad litem involves many complex decisions and much strategy that only a skilled and experienced attorney can properly navigate. If you have questions about the GAL, contact us – we can help.