During a contentious divorce, it is unfortunately not uncommon for both parties to be so caught up in their own struggles and battles against one another that the well-being of any children loses its place as the top priority. In the emotionally heated conflicts of divorce, it is easy to see how some parents may not be able to properly judge what is best for their kids.
While pushing a child’s best interest lower may not be intentional, the court has a system in place to ensure a child’s welfare is always protected: The ability to appoint legal representation to look out for the child’s best interests in the form of a Guardian Ad Litem.
These will usually be court-appointed attorneys, but can also be social workers or other mental health professionals tasked with investigating both parties and making a recommendation to the court on issues related to custody, parenting time, visitation or any other contested matter. They do not work for either party, giving them a neutral standing to make a fair judgment of what will be the best outcome for all children involved.
Reasons a Guardian Ad Litem is appointed
Since the standards for having a GAL appointed will vary by state and jurisdiction, it is hard to generalize when they will be used; however, they are almost always assigned in cases where allegations of abuse or neglect are submitted.
Additionally, some courts may not require a GAL if the minor children involved are older. While 6-year-olds are not able to properly speak for themselves on such a serious matter as divorce, 16-year-olds probably can.
Either party can also ask the court to have a Guardian Ad Litem assigned to their case, though it will be up to the judge whether or not to grant the request. It can be beneficial to request a GAL in situations where there is a disagreement between both sides on a quantifiable aspect of the child’s welfare, and you wish to avoid the costs and hassles of litigating the matter in front of a judge. Both parties can agree to abide by the GAL’s recommendation, which can help cut down on the fees of excessive court hearings.
Responsibilities of a Guardian Ad Litem
GAL’s are advocates for minor children, just as an attorney advocates for whoever retains their services. Their primary duty is to investigate and determine what will be in the best interests of the child after the divorce is final. The Guardian Ad Litem will conduct interviews with both parties, the children and anyone else who may have insight into what will be best for the kids after the divorce is final. This can include friends, neighbors, teachers, coaches or anyone else who would be able to shed some light on the background of any contested custody issues.
After completing their analysis, the GAL makes a custody report to the court, and while the recommendation is not determinative of the outcome of the case, the court will place substantial weight on what the GAL recommends.
Preparing for investigation
Every Guardian Ad Litem has a different method for conducting their investigation, but you must be prepared to share many significant details of your own and your soon-to-be ex’s relationship with the children, including:
A brief history of your relationship with your ex — The GAL does not want to hear every detail of your relationship, but they will be interested in knowing the circumstances surround the two of you and your relationship with your kids.
What exactly brought you to the point of contested custody litigation — It’s best to do what you can to spend your time with GAL discussing the facts so he is adequately informed regarding your case.
Your parenting style — Whether you are a laid back parent or a strict disciplinarian, you can’t help what you are. Be honest, and if your parenting style differs from your soon-to-be ex, be sure to tell that to the GAL.
The children’s daily routines — The Guardian Ad Litem will want to know what activities they are involved in and how their schedule looks.
Provide a helpful list of people to interview — Keep your list between three to five people who have seen you interact with your children and can emphasize the strengths of your parenting.
Be prepared to address the question “What will the other party say about you?” — This is designed to draw out what you believe to be your strongest and weakest points as a parent. Be sure to have an answer ready, as this shows your ability to recognize that you aren’t the perfect parent.
Finally, remember to reiterate that all you really want is what is best for your kids. Contested litigation inherently breeds self-focus in parents, and a simple statement to a GAL of “I want what’s best for my children” will be remembered.
Dealing with Guardian Ad Litem bias
If you feel the GAL is showing a bias against you, notify your attorney and have the attorney notify the court immediately. You only have a small window to disqualify a GAL, and that is only before the investigation starts.
Guardian Ad Litems are court-appointed to investigate the case for the child, and, if they are not doing their job, then the court must appoint someone who will. That being said, if the GAL has legitimate issues with one parent, it is natural for that parent to feel a “bias.” Therefore, any motion to the court for a new GAL must generally be supported by some other evidence of bias, such as a series of emails favoring one parent over the other, a failure to return one parent’s or that attorney’s calls, a history of siding for one sex over the other, discipline by other courts, etc.
Guardian Ad Litem fees
In many states, the parents are responsible for the GAL fees, even if the court appoints the GAL. Some local courts may also have funds for GALs, but they are typically reserved for low-income families. Realize that the fees can be very expensive — sometimes as much or more than an attorney’s.
If you’re thinking about requesting a Guardian Ad Litem, do your research into costs and be prepared to pay them, as the court does not have to distribute them between the parents (though it often does, whether equally or in proportion to income).
Also be aware that there is a difference between a “Lawyer-Guardian Ad Litem,” who functions as an attorney for the child, and a “Guardian Ad Litem,” who investigates and speaks for the child. LGALs have attorney ethical standards to abide, and they may do more litigating than GALs. However, either will charge, and usually the parents pick up the bill.
It is undoubtedly uncomfortable to have a stranger evaluate your parenting ability over a relatively short period of time with such a small sample size, and then make a decision that will carry a lot of weight with the court on the future of your ability to see your child. However, realize the system exists to ensure the welfare of every child is kept as a priority. It obviously isn’t perfect, but you must simply put your best foot forward and let your parenting ability speak for itself.
Mat Camp is a former Lexicon Services Online Editor, who focused on providing a comprehensive look into all aspects of the divorce experience. On MensDivorce.com, he concentrated on issues, such as parenting time, custodial rights, mediation, the division of assets, and so much more.
Mr. Camp used the wealth of experience of Cordell & Cordell attorneys to bring tangible answers to reader questions in Ask a Lawyer articles, as well as offer a step by step process through the divorce experience with Cordell & Cordell Co-Founder and Principal Partner Joseph E. Cordell in Divorce 101: A Guide for Men.
Mr. Camp used thorough research to highlight the challenging reality that those who go through divorce or child custody issues face. He helped foster the continued success of the Men’s Divorce Survival Guide, the Men’s Divorce Podcast, and the Men’s Divorce YouTube series “Attorney Bites.”