The Role of a Guardian ad Litem in Family Law Matters - ABA YLD 101 Practice Series

By Valerie L. Moore

Introduction
As a family law practitioner, our role entails representing parents as they strive to find and provide a loving environment for their child and, consequently, look out for the child's best interest. Few phrases cause as much litigation, or confusion, as the phrase "best interest." Rarely can a client define "best interest" and most parents tend to take the "I know it when I see it" approach - and what they know is that they have the child's best interest at heart and the other parent does not. The parents that agree as to what is in their child's best interests, rarely end up in litigation. Those parents are able to work together at coming up with a solution that works for their particular family. The rest of the parents litigate, with or without the help of an attorney, and try to convince a Court that their belief is truly in the best interests of the child.

In high conflict cases, the Judge may appoint a Guardian ad Litem (GAL) to act as the child's voice in Court. Acting as a GAL can be an extremely rewarding and freeing experience. It gives the practitioner the chance to view a case from the outside and a chance to really look at what is in a particular child's best interests as oppose to what a parent believes is in the child's best interest. The following is meant to introduce you to the role of a GAL and the general responsibilities that such an appointment requires.

Becoming a Guardian ad Litem
Requirements for becoming a GAL vary by state and even within a jurisdiction. There are many jurisdictions that do not require that a GAL be an attorney. In these jurisdictions a GAL may be a social worker, therapist, or trained lay person. The first place that you should look regarding your jurisdictions requirements for GALs is the local or state court rules. These rules usually provide the requirements and application process for becoming a GAL.

Generally, a GAL must attend a set amount of continuing legal education classes devoted specifically to GAL or relevant family law issues in order to obtain or maintain the right to act as a GAL. Those requirements vary and it is important to know the specific requirements for your jurisdiction.

GALs are primarily used in three types of cases: custody disputes, child protection cases, and guardianships/conservatorships. Judges usually maintain a list of attorneys who are willing to participate as a GAL in such cases. In child protection cases the fee is usually paid by the county or state. Although these cases are often done at a reduced rate, the payment is generally guaranteed. It is important to note that GALs in child protection cases usually have knowledge regarding this area of the law. If you have little or no experience in child protection cases, offer to represent parents in these cases at a reduced rate or even pro bono. By participating as a parent's attorney, you will gain knowledge of what the role of a GAL entails and learn more about the specific statutes, case law, and local norms in child protection cases.

In guardianship/conservatorship cases, the Court may have a set rate upon which you are required to work. Additionally, payment is usually made by the Petitioner in the action, which can mean that you will not receive payment until the case is completed. In child custody cases, the parents are usually responsible for the GAL fees. As in every other case, it is advisable to require that each parent put money in trust to cover the fees associated with acting as a GAL. As a general rule, both parents should pay the exact same amount so that there is no allegation or insinuation that the GAL is being bought by the parent who paid more of the initial fee. Your Judge may have specific rules regarding the payment of the GAL fees and you should not be afraid to ask. The Judge knows that you are doing a great service and the Judge wants to insure that you are paid for your service. Do not be afraid to speak up if you have concerns about the willingness or ability of the parents to pay your fees.

Once you have been appointed as a GAL in a case, the order should provide that you have the freedom to speak with any and all individuals that you feel are necessary without the need for subpoenas or signed releases. The Order should allow for you to communicate with the child and with the school, therapists, doctors, and any other persons of interest to your case.

The Duties and Responsibilities of the Guardian ad Litem
As a GAL of a child, you are representing the best interest of the child. This is different than representing the child directly. As an attorney, you have a duty of confidentiality to your client. As a GAL, there is not such duty of confidentiality as your role is to represent to the Court the best interests of the child. It is very important to know the specific rules of your jurisdiction so that the framework of your representation is clear to all.

Prior to taking on the role of GAL it is important to know the Court's and the attorney's expectations of the GAL:

  • Does the Court desire a written report of the GAL's findings? (some jurisdictions require a report - others specifically forbid a written report)
  • How would the Court like to handle the matter if there is a conflict between what the GAL believes is in the child's best interests and what the child wants? (some jurisdictions require the appointment of an attorney for the child in addition to the GAL other jurisdictions require that the GAL notify the Court of the conflict)
  • Does the GAL have permission to speak with the parents outside of the attorney's presence or do the attorneys desire to be present for all communications? (some attorneys do not feel it is appropriate for an attorney/GAL to speak with their client outside of their presence)
  • Does the Court desire the GAL to file pleadings and actively participate at all hearings? (some jurisdictions require the GAL to behave as an attorney and file pleadings on behalf of the child)
  • Can the GAL be called as a witness should the matter proceed to trial? (some jurisdictions allow for the calling of the GAL as a witness - other jurisdictions do not feel that a GAL should ever be called to testify)
  • Should the GAL participate in mediation sessions between the parents?
  • How often the GAL should meet with the child (is there a minimum contact requirement)?
  • Who the Gal must speak with (parents, teachers, etc.)?
  • Is the GAL required to make an independent investigation of the facts or can the GAL rely on previous reports and records?
  • Are there specific factors that should be used in determining the best interests of the child (i.e. child's age, maturity, etc.)
  • Does the Court want the GAL to recommend services that are appropriate for the family?
  • When does the GAL's appointment terminate? (i.e. is the GAL to remain on the case as a monitor once the Court makes a ruling).

By addressing these questions at the beginning of the case, everyone is on the same page and understands how the GAL shall function within the case.

Practical Tips
As a GAL is it imperative that you realize that your role is also to act as an interpreter for the child. The legal process is extremely confusing to a child and your role is to explain the process in terms that a child can understand. Obviously, the manner and topics which are addressed with a five year old will be completely different those addressed to a 15 year old. All conversations should be age appropriate and done in the appropriate setting. It is far easier for a younger child to open up if they are working on an activity such as a puzzle, coloring, or a simple board game. Younger children are usually not forthcoming with information and need an activity to pursue while they communicate. An older child may be perfectly comfortable talking with you in your office or may prefer to go for an ice cream or a cup of coffee to discuss the situation.

It is imperative that the child not be placed in the position of choosing one parent over the other. This is extremely traumatic for a child. The child loves both parents and all questions regarding the child's opinion should be addressed in such a fashion that the child does not have the impression that he or she is choosing one parent over the other parent. This is especially true with older teenage children. Once a teenager realizes that he or she has the power to pick whom they live with, the power balance in the family has shifted and the child now has too much control.The teenagers opinion should be heard and explored but in such a manner that the teenager understands that the Court will ultimately make the decision and the teenagers wishes and desires, while taken into account, are not the only factors the Court will use in determining the issues.

Therapists, teachers, doctors, and daycare providers are wonderful sources of information. Often a child spends more time in school than he or she does at home. The teacher is able to evaluate the child as he or she compares with other children of the same age and, in theory at least, the same socio-economic class. Teachers are often able to give information regarding the completion of homework, the child's interaction with his or her peers, the child's cleanliness, and the child's general well-being. The teacher may also be able to pinpoint any changes in the child's behavior - this can be immeasurably helpful in cases where abuse or neglect is alleged.

Likewise, therapists are a great resource as they are licensed professionals who can give you a solid diagnosis of any behavioral or emotional problems the child or parents may be experiencing. A licensed therapist is going to carry a lot of weight with the Judge as he or she has no "dog in the fight" and usually wants what is best for their patient.

Conclusion
Being a GAL is time-consuming and difficult as it is often the GAL's responsibility to sift through years of negative actions, behaviors, and conduct by each parent in an attempt to determine what is in a child's best interest. In a healthy family, the parents can determine what is in their child's best interests; however, all to often, this difficult task is left to a GAL. The rewards of representing a child and representing what is truly in a child's best interests are as numerous as they are significant. The freedom of working for a child rather than presenting what a parent wishes or desires allows an attorney to focus on a different aspect of the family law and, ultimately, makes the attorney a better lawyer.


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About the Author

Valerie L. Moore is currently a solo practitioner in Lenexa, Kansas. She serves as a Guardian ad Litem and maintains a law practice devoted to issues surrounding families and children. Prior to private practice, Ms. Moore was a staff attorney at Kansas Legal Services representing victims of domestic violence in family law matters.

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