Guardians ad Litem (GAL) in Child Custody Cases Frequently Asked Questions

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What is a guardian ad litem?

In a child custody case, the guardian ad litem (GAL) is an attorney appointed by the court to represent the best interests of the parties’ children. Guardian ad litem are generally attorneys who have agreed to take such appointments by the courts in their area. In each specific case, it is presumed that the guardian ad litem has no bias against either party or any preconceived notions regarding the outcome of the case.

Many states’ laws allow for the appointment of a guardian ad litem in contested child custody cases, while other states require appointment when there is an unresolved custody or visitation dispute. When in the court’s discretion to appoint a guardian ad litem, if the judge desires an independent, impartial advocate for the best interests of the children, a guardian ad litem may be appointed to provide such advocacy.

In some states, guardian ad litem are considered the children’s attorney. However, in other states, the guardian ad litem’s client is actually the attorney for the principle, the best interests of the children.

What does a GAL do?

Like any other attorney in a contested custody case, guardian ad litem represent their clients. Such representation includes doing an investigation, interviewing the parents and other potential witnesses, and sometimes doing home visits. The guardian ad litem may request appointment by the court of a custody evaluator. The guardian ad litem attends and participates in all motion hearings, scheduling conferences and, of course, the trial of the case. At hearings and the trial, the guardian ad litem will be given the opportunity to cross-examine the witnesses and may even call their own witnesses. The guardian ad litem may offer pertinent documents into evidence as well.

Guardian ad litem are usually given the responsibility to be the voice for children who are old enough to express their own opinion. Thus, it is their responsibility to be able to express the wishes of the children, even though they may not agree that the children’s wishes are in their own best interest. Unlike an attorney for a party, GAL may take positions in opposition to what the children’s stated wishes are.

Prior to trial, some guardian ad litem may attempt to mediate an agreement on the disputed issues between the parties. In addition, the guardian ad litem must be prepared to make a recommendation to the court regarding custody and visitation issues. Usually, the court will require the guardian ad litem to be prepared to give its recommendation prior to trial. Having the guardian ad litem’s recommendation often aids settlement of the case, since the parties recognize that the guardian ad litem’s recommendation may figure significantly in the court’s decision.

How are guardian ad litem paid?

Generally, the parties pay GAL fees, with each sharing one-half the total cost. In some cases, especially in those cases where the court is required by law to appoint a guardian ad litem, forcing indigent parties to pay the fees would be considered a denial of access to the court. In those cases, states have a mechanism for paying the guardian ad litem fees.

Do guardian ad litem have specific training for the job?

Some state laws provide that guardian ad litem must have a certain continuing legal education (CLE) credits, specifically pertaining to guardian ad litem appointments, prior to being allowed to accept guardian ad litem appointments. Such education may include courses on topics specifically related to children, divorce, and child development. Otherwise, since the role of the GAL is to represent a client just as any other attorney represents a client, even if the client is a principle (the best interests of the children) instead of an actual person, some argue that no special training is required.

What if a party thinks the guardian ad litem is biased against their case and wants to have them removed and replaced?

Proving bias by a GAL is likely to be an uphill battle unless there is some very specific, blatant act or omission that demonstrates bias against a party. Since, by definition, a disputed custody case will leave at least one parent unhappy with the outcome of the case, guardian ad litem are often accused of bias. The judge who made the appointment will also make all decisions about replacement of guardian ad litem. Since judges usually have prior experience with the GAL they appoint, they are more likely than not to trust a guardian ad litem’s impartiality over a parent’s claim of bias.

Checklist: Guardian ad Litem

To read and print out a copy of the checklist, please follow the link below.

Guardian ad Litem

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