Often you will hear mention of a Guardian ad Litem, or “GAL,” being involved when custody is contested. If your case is a divorce involving children, or a modification of custody, it is possible that a Guardian ad Litem may be added to your case either by your own request, that of the opposing party, or the Judge herself.
A Guardian ad Litem is a licensed attorney that joins the case to represent that “silent party,” which is the child(ren)’s best interest. Their role is an investigative one, in which they will interview and meet with not only the child(ren), but also the parents, step-parents, heavily-involved family members, schools, pediatricians, and mental health care professionals for the parents and for the child(ren) in order to get a full image of the background of the case. In doing so, Guardians develop reports based on their findings and what they believe, in their professional opinion, is the best outcome for the child(ren) overall. These reports can also be in the form of recommendations as to what kind of custody arrangement and additional services should be put in place to serve the best interest determination.
The GAL may be present at any hearing to provide their insight upon request of a Party or by the Court. A GAL may also request a hearing and to be heard directly should they feel it is necessary. Often an informal, or incomplete version of the GAL’s report and recommendations will be prepared or presented if there is a temporary hearing or mediation to assist with whatever decision will be made. If a final trial is necessary, a complete report can be requested by the parties or ordered by the Court to be read ahead of the trial, or sometimes, at the trial.
Guardians are supposed to be heavily involved, and are tasked with developing an impartial opinion when it comes to the parents. As such, Courts often rely on them as having the most direct access to all the available facts, rather than what one single parent’s attorney will present as their advocate. Judges, therefore, have a tendency to favor the Guardian’s recommendation. It is not an end-all, be-all decision, and it can be combatted, but it is an uphill battle to do so. Guardians in this regard have a lot of sway, and therefore their involvement should be a calculated measure. Not only does their involvement mean splitting the payment of another attorney, it is possible, even if you are the one who requested that a GAL become involved, that they do not end up siding with you. It is vital to discuss this decision with your legal team to review any weakness you may have and to work to combat that immediately, so that no recommendation would go against you.
Ultimately, there is the undeniable challenge of not knowing that picture your child paints. If you have a very different perspective, it’s possible that when the GAL talks with your child, they do not see what it is you hope they do. This is a difficult perspective to face. Don’t mistake a GAL as being a child’s advocate or as representing the child(ren) as their attorney. The best interest of a child is not the same as what that child is wanting, and it’s entirely possible that the GAL believes that a child wants something that won’t be good for them.
At the end of the day, the involvement of a Guardian ad Litem is a calculated risk, and it should be one that you and your team account for from the very beginning to ensure that your case has the best support possible. It also means being open to listening from your children about their other parent(s) and acknowledging that their experiences as minors with their caretakers will not be the same as what you experience as their parent.