The Judge’s job in a custody/divorce case is to determine the best interests of the children when mom and dad are fighting. The Judge considers mom’s testimony and evidence as well as dad’s and even the children’s testimony (clickable). But there is also another implement in the tool box of information available to the Court, the Guardian Ad Litem (GAL).
A GAL is a person, usually a lawyer, appointed by the Court to take on one of two roles.
1) The first of these is to be an Attorney for the Children. To represent the child in the same capacity any attorney would represent a client, with the same duties, obligations and confidences that every attorney owes to each client. This role is fairly uncommon in custody/divorce actions.
2) The much more common role is that of Investigator for the Court. Judge’s routinely appoint an attorney to serve as the Court’s eyes and ears on the ground. Judge’s are limited to what they can hear.
They are limited by time constraints, objections, admissibility issues, and lawyer’s abilities. A GAL appointed by the Court as an Investigator has much more readily available access to information.
- GALs interview mom, dad and the children.
- They can interview teachers, doctors, counselors, friends, and coaches.
- They can practically speak to anyone they think they need to.
- A GAL can inspect the home where the children stay and can do so unannounced.
- GALs can pay surprise visits.
- GALs can access school records, medical records, counseling records.
- GALs can request medical evaluations and even psychological evaluations.
- GALs, by and large, can do what is necessary to get to the bottom of the issues in a case.
So why does every case NOT have a GAL?
1) They are only required in abuse/neglect cases, otherwise it is discretionary. The Court may not allow for a GAL.
2) It adds another layer of expense, another attorney to pay. The Court usually makes both parties pay.
3) It can create delay. The GAL may ask for more time to conduct the investigation and scheduling trial depends on another lawyer’s calendar.
4) The GAL may not believe you. They are human and may believe the other parent over you, plus you may be lying to them. It adds risk.
5) They may not do a good job.
GALs typically prepare a report that is provided to the Court and both lawyers. It recounts their efforts, interviews, documents reviewed and conclusions drawn. The GAL report also includes recommendations, usually. The Court is not required to follow the GAL recommendation.
Guardian Ad Litems can be a critically important tool available to the Court or parties in a contested custody battle, but the involvement of a GAL also has risks and expenses associated too. Talk to your lawyer if you have concerns about abuse/neglect and whether a GAL may help in your case.
Matthew Thompson is a family law attorney that has served as a GAL and has handled numerous cases involving GALs. He has seen the good, the bad and the ugly. He also conducts GAL training sessions at Continuing Legal Education Seminars for lawyers that want o become certified GALs; topics include conducting GAL Custody Evaluations, GAL Investigations, GAL Reports and Testifying.
You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms.