What is the role of a guardian ad litem?

When a couple divorces or separates, or an issue of legal paternity arises, a guardian ad litem (GAL) is appointed by a judge to represent the best interests of the child/children in instances where the parents cannot come to an agreement about legal custody or physical placement of the children. A GAL also can be appointed by the court if the judge has concerns about the welfare of a child or in cases involving monetary settlement for an injury to the child.

A guardian ad litem is a licensed attorney appointed by the Court, to advocate for THE BEST INTEREST OF THE CHILD. The GAL will investigate the facts, take part in negotiations between the parties, provide the parents and their attorneys with a preliminary summary of findings and then present a position to the court concerning legal custody and legal placement of children. A GAL can hire experts, investigate whether there has been any violence or abuse and interview witnesses. Besides conducting interviews with family members and other people who may have important information concerning the family, the GAL can review school, medical and mental health records. If necessary, the GAL may speak with social workers or psychologists and ask them to testify. In addition, the GAL can request the Court to order drug or alcohol screening tests of parents if needed. The GAL typically meets with both parents separately and should meet with the children. The GAL also can comment on agreements made between parents about the children, including parenting plans.

It’s important to note that the GAL is not the child’s attorney — they are an attorney appointed to look out for the best interest of the child — this does not necessarily mean they will agree with what the children want.

The GAL considers a wide range of factors in making legal custody and physical placement recommendations to the Court including:

  • The wishes of the children and parents
  • Incidences of violence/abuse and drug/alcohol use by the parents as concerns the safety and well-being of the child
  • Child’s relationship with the parents and other family members
  • Quality time spent with the children by each parent
  • Need for predictability and stability, as regards placement and scheduling, on behalf of the child
  • Proposed changes and how they would affect the child as concerns what community they would live in, which school they would attend, the need for child care
  • Mental and physical health of the parents
  • Relationship between the parents — level of cooperation, communication and willingness to support the other parent’s relationship with the child

The judge will determine who pays for the GAL, but usually the cost is shared between the parents. Finally, it is worth noting that once a GAL is appointed to a case, the GAL is rarely removed from the case. A parent’s disagreement with the GAL’s recommendations does not constitute a valid reason to dismiss the GAL from the case and only a judge can remove a GAL from the case.

By Tlusty Law

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Posted in: Family Law