On occasion, disputes occur between divorcing parents concerning the care and custody of their children. When they do, the court may appoint an attorney to serve as a Guardian ad Litem (GAL). Unlike an attorney who advocates a client’s position, the GAL is required to investigate the issues identified by the court, determine what is in the best interest of the child, and make recommendations based on facts gathered during the investigation.
The GAL should carefully review all pleadings related to the case prior to meeting with the parties. Additionally, it is helpful for the GAL to seek, in written form, an outline of the parties’ positions regarding the issues. This outline may be drawn up by the attorney representing the party, or by the parent if they do not have an attorney. Once this initial information is obtained, the GAL should meet with the parties individually to discuss their position as well as concerns not addressed in the written summations.
A GAL may seek information from collateral sources such as school teachers, relatives, neighbors, and treatment providers. Special care must be used in cases where a GAL seeks to obtain information from a child’s therapist. Generally speaking, conversations between a child and his or her therapist are confidential and cannot be revealed by the therapist without the child’s permission. Therefore, a limited purpose GAL may be appointed to decide if the child’s privilege should be waived or asserted. Only if a privilege is waived may a GAL speak with the child’s therapist.
The GAL must decide the appropriateness of interviewing the child. When it is determined that an interview is appropriate, it should be conducted face to face in a setting comfortable for the child. It may be appropriate on occasion for the GAL to ask a child specifically for their opinion on issues before the court. Care must be taken to avoid placing the child “in the middle” of the dispute. Careful consideration must be given to the motivation behind the opinion by the child, including whether it is being given in an effort to ease parental conflict.
Once the GAL completes the investigation, a written report is submitted to the court and is available to the attorneys and their clients to review. Often, the report and recommendations serve as a catalyst toward resolution of the issues. However, if the parties are unable to reach an agreement, the matter will the most likely go to trial.
At trial, a GAL may testify regarding his or her investigation and the recommendation made. Although the court may consider the GAL’s recommendations, there is no requirement to do so. The court is required to make a determination based on all evidence presented during the trial and not solely on the recommendations of the GAL.
A thoughtful GAL investigation can help a judge make informed decisions about the care of the children in disputed domestic relations cases.
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