When should a Guardian Ad Litem be requested in a Dissolution of marriage Action and what are the duties and responsibilities of Guardians Ad Litem (GAL). The Issue of whether to request the Court appoint a GAL usually arises in one the following scenarios: 1) The parties are having a contentious divorce proceeding and arguing over the children’s time-sharing between them. One parent alleges the child is in danger if they spend time with the other parent. Determining whether the child is afraid or does not want to be with the other parent due to drug use, smoking or other behavior that the child perceives, either on their own, or unfortunately, at the prodding of the other parent as harmful to their well-being is legitimate, or not, needs to be determined; and 2) Post-dissolution when a child, usually a teenager, starts refusing to exercise their parenting time with the other parent alleging harm while they are in that parent’s care. The parent with physical custody of the child throws up their arms and says, “What can I do?” “I cannot drag the child to the other parent’s home.”
With the plethora of empirical literature concluding children usually benefit from frequent interaction with both parents, the courts usually want to resolve these issues in favor of a shared parenting schedule in the absence of any evidence that this is not in the child/ren’s best interest. See https://www.nationalreview.com/2015/05/children-need-both-parents-even-after-divorce-robert-franklin/. More and more Florida Family courts are awarding equal time-sharing between the parents finding this is in the child/ren’s best interest.
The problem for the attorney in cases where there is an allegation of harm to the child is whether there is a legitimate concern such that the child needs a voice in court, or whether their client or the other party is trying to alienate the child for the other parent. The family law practitioner needs to be sure the child has a voice when they suspect there is a legitimate issue. This cannot be accomplished in most cases without the appointment of a Guardian Ad Litem. Bringing children into court to testify is deplorable and most Judges will not even consider it and Family law attorneys should refrain from recommending it to their clients. The parent cannot testify to what the child is afraid of, or what the child is telling them, without a hearsay objection. Therefore, the child, who may have a legitimate basis for their fears and unwillingness to engage in parenting time with one of his or her parent is without a voice in the process, which creates grounds for a child feeling that no one cares about them.
Attorneys practicing family law should always encourage their client’s to act in their child’s best interest and put their emotions on a back burner. A parent who is simply mad at the other parent during the divorce proceeding and using the child as a pawn should be firmly discouraged, but doing so without losing the client can be problematic. In post-dissolution matters there is usually an Order addressing the current parenting plan, which requires the Attorney to advise the client that failure to abide by the Order could result in a finding of Contempt and a possible award of attorney fees to be paid to the parent who is not receiving their parenting time. This presents an ethical quandary for the attorney who believes his client and has nothing to suspect parental alienation. Parenting evaluations can sometime be helpful, but are very expensive and often time-consuming. The parenting evaluation often will not give specific voice to a child’s concerns and will be interested in the parenting plan between the parents and usually will not speak to or consider the child’s complaints as it is usually assumed that children have no place in deciding the parenting schedule.
Therefore, the only viable option when there is a valid issue that only a child can speak to is the appointment of a Guardian Ad litem (GAL). The GAL is the only party that can “speak for the child; and advise the court of their opinion as to what is in the child’s best interest based upon their opinion after speaking with the child and other interested parties. Dissolution actions, by their very nature, are emotional cases-even with the most well- behaved parties. Different opinions on what parenting plan the court should order in the divorce is often a hotly contested topic. Unfortunately, I’ve seen many attorneys get pulled into the debate and form opinions based on what his/her client is telling them without any objective evidence to do so. It takes restraint to be the peacemaker. I strongly encourage peacemaking in Family law cases. Dissolution cases where there have been allegations of child abuse or neglect are cases in which the court may appoint a Guardian Ad Litem on its own, or one of the parties may petition the court via a Motion To Appoint. Preparation of the Order is also key to providing a child with a voice via the GAL. Check with the specific judge or District and look for the appropriate language to include in your order, so that your GAL’s hands are not unnecessarily tied.
The best practice is to speak to opposing counsel, or the other party if they are pro ce. I encourage finding and agreeing upon a common goal. In cases like this, the common goal, of course, is what is in the child’s best interest. Even in cases where one parent will feel “accused” it is in their best interest to agree to the appointment of a GAL who can ferret out these issues. It’s usually a “win, win for all parties concerned, especially the child.
As appealing as it is to the family law attorney to believe what their client is telling them, the fact is that, neither attorney really knows what is going on and everyone currently involved is biased. Again, the suggestion to Jointly Move to Appoint the GAL is often the best case practice. There are a few reasons: 1) You are signaling to the court that you are working cooperatively to solve a problem. Judges appreciate this; and 2) If the attorneys can work cooperatively, their clients will often follow suit; 3) the GAL is trained to speak to the child so they feel heard and cared about in a process that often ignores their fears or concerns without psychologically harming the child.
So what is Guardian Ad Litem and what are their qualifications? The Guardian Ad
Litem is a person appointed by a court to protect the interests of the children and represent them to the court. The guardian ad litem’s job is to present an independent view into what is best for the children after talking to both parents and the children. This independent view is designed to aid the court in making the ultimate decision on parental time sharing and parental responsibility. The guardian ad litem works in the best interest of the child, but is not an attorney representing the child.
Guardians ad litems are sometimes court appointed attorneys, but they do not have to be attorneys. Social workers, mental health professionals, and other professionals may be appointed as guardians ad litem as well. It is important for whoever is appointed to build trust with the child involved in order to best represent the child’s needs. Therefore, choosing who to appoint should not be left to chance. The goal should be for the attorneys to discuss the issues involved and agree upon a GAL who has the best qualifications for the issues involved.
Although courts generally make the appointment, I would suggest the best practice is to agree on the process, submit a Joint Stipulation to the Court after discussion on agreement to the best GAL to utilize for the issues involved. In a Dissolution action either party may file a Motion if consensus and agreement cannot be reached. It is important to be aware that a parent requesting the appointment of a GAL does not control or oversee the appointed person. The GAL must remain a neutral party solely concerned with the best interests of the child. Any intrusion by a parent into the process can back fire affecting the findings and should be strongly discouraged.
In cases where the GAL deems it necessary, s/he can work through an attorney to get a court order to review medical or school records related to the child in order to determine the child’s best interest. Again, best case practice is to agree upon what records would be necessary and give the GAL that power up front and in a best case scenario include in the Order appointing the GAL. However, in practice, it is often not known what the GAL will need until after s/he gets started. If agreement cannot be reached this issue will need to be presented via a Motion after the appointment or at the time of the filing of the Motion for appointment, assuming there is evidence to convince a Judge such records will be necessary. Judges always appreciate judicial economy, so the attorneys speaking to one another and reaching agreement and presenting the Judge with one Initial Order Appointing the GAL should be the aspirational goal.
The fees and costs payable to the GAL are usually borne by the parents in equal shares. However, if the party wanting the GAL is only obtain agreement to Appoint by agreeing to pay the costs of the appointment, it is often in the child’s best interest to agree to do so. Payment of the costs associated with the appointment of a GAL is often money well spent and almost always less expensive than litigating the issues. A GAl is trained to resolve the issues expeditiously without the bias’ that parents and their attorneys often cannot help but have.
The GAL upon completion of his or her investigation must file a written report with the court. It is important to recognize that the GAL’s recommendations are not binding on the court with regard to the finding of what is in the child’s best interest. The judge will have discretion to either follow all the recommendations contained in the GAL’s report, or craft his or her own parenting plan taking the report into consideration. It is also important to know that a GAL cannot testify to what the child said to them. This would also be hearsay and discourage the child from being open and honest with the GAL. The GAL will or should advise the child that their specific words are confidential and will not be disclosed, but rather used to make her recommendations to the court.
Clients usually want to know what makes the GAL qualified to make recommendations on what is best for their child. There are specific criteria that the Florida Guardian Ad Litem Program requires. All GAL’s go through training and most have advanced degrees before they go through the specific GAL training. Most GAL’s are highly motivated to help children; and all the requirements are geared toward obtaining guardians ad litem with the objective of representing the best interests of the children they are appointed to represent. However, be aware that not all GAL’s are created equally. Do your homework, optimally you want to request a specific GAL based on knowledge and experience in the field. Attorneys with a background in Family law are excellent GAL’s. The Florida Bar was requested in its last session to enter an advisory opinion regarding the nearly 150 attorney who are also GAL’s. The Bar declined to do. See https://www.floridabar.org/the-florida-bar-news/board-to-discuss-online-legal-services-providers-july-19/. I would encourage family law practitioners to read this article and weigh in on the issue the next time it is presented. As with all Family Law matters, please call our firm if you need help in either representation or mediation of any family law matter. I am an AV rated attorney practicing solely in the area of Marital & Family law with over 20 years of experience. I am Certified by the Florida Supreme Court as a Family Mediator. Call the Law Offices of Elizabeth Wolt, P.A. at: 239-353-9988.