Is it a good idea to hire a guardian ad litem in a custody case? If you had asked me that a year ago, I would have given you a resounding “yes.” Now, I have had an experience that has made me rethink my opinion.
The role of a guardian ad litem, or “GAL” is to represent the interests of a person with a legal disability in court. Some appointments take place in divorce cases where custody of the children is at stake. Sometimes a GAL is selected to determine the best interests of an incompetent adult. The idea is that the “GAL” can investigate the circumstances of the case and presumably advise the court in a way that allows the judge to make a final decision in the best interest of the incapacitated person. In some cases, that is exactly what happens. However, there seems to be a tendency among judges to rely solely on what the “GAL” reports, instead of listening to the evidence that is presented at the hearing.
I recently had a divorce case where my client had had temporary custody of his children for over a year. The father continued the final hearing several times. He did not pay alimony. We agreed on the appointment of a “GAL”. He made a report, stating that the children would be better off with her father, because her mother had had a fight with her boyfriend, and one of her children had heard her swear at him.
The older of the two boys was in kindergarten. The father’s visit had originally been scheduled for Monday and Tuesday of each week to accommodate his work schedule. He made the girl skip kindergarten to receive a visit from her, although he proved in court that his boss would have been willing to change his work schedule to let her daughter go to school .
At the hearing, we disproved most of the things the “GAL” had found in favor of the father and, except for the yelling boyfriend, almost everything he had found wrong with the mother. She did not come forward to defend her report, although she had written to him several times asking him to make corrections based on the documentation I provided. She does not.
The judge awarded custody of the children to the husband. At his command, he did not address the many things we had proven at trial on the mother’s behalf. He did say that the father should have to repay the alimony he had neglected, but other than that, it was as if he had slept through the entire hearing, or had let enough time pass that he had forgotten everything that was proven. .
It is an unfortunate fact in our legal system that there are not enough judges to go around. As a result, cases are often decided on the basis of hasty evidence, gathered too quickly. There is a good case for hiring someone to summarize the facts of a case so that the judge can make a decision without hearing hours of often irrelevant and often transparent testimony. However, the judge must not disregard his obligations of impartiality and rely on evidence produced outside of her presence by someone who has little training in understanding what he should be trying to find out. So, if you are faced with the option of hiring a “GAL” to make the custody decision, keep the following tips in mind:
1. Find out what procedure you will use. To make a good report, you need to talk to teachers, neighbors, friends, doctors, and anyone else who has information about the child. You must make a home visit with both parents when the child is present. She should talk to the child, not to ask where she wants to live, but to learn about her likes, dislikes, abilities, and communication skills. Sometimes just finding out what experiences a child has with each of her parents can expose a lot of information about the family situation.
2. Find out what training your “GAL” has. If you just received a certificate from a two-day course, you really aren’t qualified to investigate your situation. If you have had extensive training in a related field, such as family counseling, and have had some experience with children’s problems, it can be very helpful in providing the correct information to the court.
3. What will your employment cover? Hopefully, it will be your duty to report the facts to the court. This means that she will not make a recommendation. The judge must take his report into account, but he must never relieve the court of its duty to consider all factors before making a custody decision.
It is always better if parents can make child custody decisions between themselves. No other person, no matter how well trained or experienced, can discover all the subtle details that constitute a child’s experiences and needs. However, there are parents who cannot communicate effectively and who refuse to deal rationally with each other when it comes to resolving the important issues of a divorce. Because of this, courts must rely on “guardians ad litem” and other professionals for some of the information a court should consider when deciding a contested custody case. Hopefully, the person hired on your case has the training and the background to provide a fair and honest report to the judge.
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