A Guardian ad litem (hereinafter “GAL”) is sometimes employed as a component of Modification of Time Sharing Proceedings, especially when those matters litigate all the way to trial. The GAL can serve multiple roles in the litigation including, but not limited to, investigator and expert witness. Courts are often very willing to enter orders that appoint a GAL and, once they are deployed, become pivotal in the court’s decision making.
Appointing the GAL
Florida Statute § 61.401 addresses the Courts authority to appoint a GAL in modification proceedings.1 When the court enters such an order, the first issue to be resolved is who will act in that role. In some Circuit’s in Florida, the GAL must be a licensed attorney. However, under the Florida Statutes, being an attorney in good standing with The Florida Bar is optional.2 At any rate, someone must be willing to engage in this capacity on behalf of the parties.
Next, the question of compensation has to be addressed.3 For the client who is able to deposit a sizable retainer into the attorney’s trust account, this is a non-issue. However, for the client who does not have such a war chest at their disposal; it may take some creative ingenuity to accomplish this feat. One such alternative is to ask the Court to enter an Order mandating that the other party pay the fees associated with the GAL.
Selecting the GAL
In some instances, there may be a list of court approved GAL’s that the parties and their respective attorney’s can peruse and select from.4 This makes the process somewhat smoother and reduces the likelihood of unfairness and/or bias toward one party or another.
In other jurisdictions, the parties may have to agree to the selection of a private person to serve as GAL. Here, the appointment of a specific person becomes much more of a litigation tool than one might think. Selecting a GAL isn’t as simple as picking a name out of a hat. Some degree of care should be used in the selection process.
A word of caution is in order here. Be especially concerned if opposing counsel suggests someone to fill the role; they may have a relationship with one another that could taint the recommendation to the court and the written report. Then, when the GAL reports that everything is favorable to their client and not yours, their allegiance to the party that chose them will shine bright and clear.
If opposing counsel has someone specific in mind, you need not run away from the suggestion. Simply consider this individual as merely one (1) option out of many and begin your screening process with them, but don’t necessarily end it with them.
Role of the GAL
The GAL will often serve as an investigator for the case.5 The Florida Statutes give the GAL liberal authority to obtain records concerning the child from virtually any agency that may have them.6 This means the GAL has the capacity to visit the school and speak with the teachers and administrators. By doing so, they will be privy to the child’s performance on their report cards and any disciplinary actions. They also have the ability to obtain medical records to evaluate the needs of the child and how well those needs are being met by the parents.
The GAL, in their role and capacity as an investigator, should explore diverse areas of the child’s life. Subsequently, the parents whether they know it or not, will soon become the subject of much inquiry. The GAL will also visit the child at his or her home and observe the surrounding conditions. They will also see how well the child interacts with their parents and note any causes for concern.
The Guardian ad litem report
GAL’s are required by law to file a written report to the court.7 Usually, there will be a clear distinction in who this report favors and for whom it does not. Either the findings, and opinions based upon those findings, will be favorable to your client or they will not. Even if the GAL fails to file a written report, they can still testify to their findings at the hearing or trial.8
If the report favors your client, you have the option of treating the GAL as an expert witness without necessarily having them qualified as such. Once you get the GAL on the stand, build up their credibility. Ask them about their previous experiences in this capacity and their educational background. Then, begin to lay the foundation for their report. Solicit testimony on who they interviewed for the report, what places they visited on behalf of the child and any records that they reviewed. Lastly, have the report entered into evidence in your case-in-chief.
Now that the document has been entered into evidence, solicit testimony from the GAL about the specific contents of their report. Have them testify to what they observed and what concerned them. Have them repeat certain quotes from their report that magnifies the great qualities of your client. You can even have them elaborate on topics within the report where it clarifies an issue for the court. This technique not only illustrates and elevates the importance of the report, it also tends to drive home the drafters intentions when it was written.
If the report is not favorable, buckle your seatbelt because you’re in for a wild ride. Judges tend to allocate a great deal of persuasive weight to the GAL’s report and testimony. However, you should take the attitude that it’s a rebuttable presumption of favorability and attack with the same veracity as you would any other adverse witness. If the GAL does not file a written report or do a meaningful job in their role as investigator, try and use this to your advantage.9
Begin by looking for what is not stated in the report that could have reflected positively for your client. Ask the GAL about potential witnesses that were not interviewed, but were available. Also, if the report tends to diminish aspects of the case that your client finds alarming or that you think responds well to one of the necessary elements, be sure to question the GAL about those details.
At the end of the day, the GAL is there to represent the best interest of the child(ren). When two parents are contesting where and when the child(ren) should be spending the majority of their time, sometimes what’s best for the child(ren) can get lost in the shuffle. The GAL provides one opportunity and one avenue to control for this important variable.
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About the Authors
Ka’Juel J. Washington is a staff attorney in the Legal Clinics department at Florida A&M University College of Law, where he is responsible for the Homelessness and Legal Advocacy Clinic, which closes over 100 cases every year.
1 Florida Statutes § 61.401 states “…[I]f the court finds it is in the best interest of the child, the court may appoint a guardian ad litem….”
2 Florida Statutes § 61.402 Qualifications of guardians ad litem.
(1) A person appointed as a guardian ad litem pursuant to s. 61.401 must be:
(a) Certified by the Guardian Ad Litem Program pursuant to s. 39.821;
(b) Certified by a not-for-profit legal aid organization as defined in s. 68.096; or
(c) An attorney who is a member in good standing of The Florida Bar.
3 See Franklin & Criscuolo/Lienor v. Etter, 924 so.2d 947 (Fla. 3rd DCA 2006) (holding “Where a guardian ad litem is properly appointed and an award of fees lawfully granted, a trial court has the inherent authority in a marriage dissolution action to ensure that its court-appointed guardian ad litem is paid as a cost of litigation, even at the expense of an attorney charging lien.”). Although this case deals with a dissolution proceeding, it does give some insight as to how the court is going to view GAL fees.
4 Not all circuits in Florida have a GAL program for family law cases so the attorney would need to check their specific jurisdiction for availability.
5 Florida Statutes § 61.401 states: “…[T]he court may appoint a guardian ad litem to act as next friend of the child, investigator or evaluator….”
6 Florida Statutes § 61.403(2) states: “The guardian ad litem, through counsel, may petition the court for an order directed to a specified person, agency, or organization, including, but not limited to, hospitals, medical doctors, dentists, psychologists, and psychiatrists, which order directs that the guardian ad litem be allowed to inspect and copy any records and documents….”
7 Florida Statute § 61.403 states: “The guardian ad litem shall file a written report which may include recommendations and a statement of the wishes of the child.”
8 See Arrabal v. Hage, 19 So.3d 1137 (Fla. 3rd DCA 2009) (holding “The guardian ad litem’s failure to file a written report did not prevent mother from a full and fair hearing, in child custody modification proceeding; mother and her attorney were present when the guardian ad litem testified via phone at the modification hearing, and they had ample opportunity to question and make arguments directed to the substance of the guardian ad litem’s testimony and conclusions.’)
9 See Owens v. Owens, 685 So.2d 1038 (Fla. 4th DCA 1997) (holding “Custody provisions of dissolution decree were valid, even though guardian ad litem did not receive copies of all pleadings and notice and did not file written report, where guardian ad litem had actual notice of proceedings and failed to fulfill his duty to review the court file.”)