Is hiring a guardian ad litem a good idea in a custody case? If you had asked me that a year ago, I would have given a resounding “yes”. Now, I’ve had an experience that have caused me to rethink my opinion.
The function 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 the custody of children is at issue. Sometimes, a GAL is selected to determine the best interests of an adult incompetent. The idea is that the “GAL” can investigate the circumstances of the case, and presumably advise the court in a way that will let the judge make a final decision in the best interests of the incapacitated person. In some cases, that is exactly what happens. However, there seems to be a trend with judges to rely solely on what the “GAL” reports, rather than listen to the evidence that is presented at the hearing.
I recently had a divorce case where my client had had temporary custody of her children for over a year. The father continued the final hearing several times. He did not pay child support. We agreed to the appointment of a “GAL”. She made a report, stating that the children would be better off with their father, because their mother had gotten in a fight with her boyfriend, and one of the kids had overheard her cussing him out.
The older of the two children was in kindergarten. The father’s visitation had originally been scheduled for Monday and Tuesday of each week to accommodate his work schedule. He made the little girl miss kindergarten to have his visit, even though he testified at the trial that his boss would have been willing to change his work hours to let his daughter go to school.
At the hearing, we disproved most of the things the “GAL” had found in the father’s favor, and except for the yelling boyfriend, almost everything she had found wrong with the mother. She did not show up to defend her report, although I had written to her several times to ask that she make corrections based on documentation I supplied. She did not.
The judge awarded child custody to the husband. In his order, he did not address the many things we had proved at trial in the mother’s favor. He did say the father should have to repay the back support he had neglected, but besides 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 proved.
It is an unfortunate fact in our legal system that there are not enough judges to go around. As a result, cases are frequently decided on hasty evidence, too quickly gathered. There is good argument for hiring someone to summarize the facts of a case so that the judge can make a decision without listening to hours of often irrelevant, and many times transparently self serving testimony. However, the judge should not set aside his obligations of fairness and rely on evidence produced out of his presence by someone who has little training to understand what she should be trying to find out. So, if you are confronted with the choice of hiring a “GAL” to make your custody decision, bear the following tips in mind:
1. Find out what procedure he / she will use. To make a good report, she needs to talk to teachers, neighbors, friends, doctors and anyone else who has information about the child. She should make a home visit with both parents when the child is present. She should talk to the child, not to ask where he / she wants to live, but to learn about his / her likes, dislikes, abilities, and communication skills. Sometimes, just finding out what experiences a child has with each of his / her parents can expose a lot of information about the family’s situation..
2. Find out what training your “GAL” has. If he she has just been awarded a certificate from a two day course, she isn’t really qualified to investigate your situation. If she has had intense training in a related field, such as family counseling, and has had some experience with children’s issues, she may be of real assistance in providing the right information to the court.
3. What will her employment cover? Hopefully, it will be her duty to report facts to the court. This is to say she won’t make a recommendation. The judge should take her report into account, but it should never relieve the court of the duty to consider all of the factors before it before making a custody decision.
It is always best if the parents can make child custody decisions between themselves. No other person, no matter how well trained or experienced can find out all of the subtle details that constitute a child’s experiences and needs. However, there are parents who can’t communicate effectively, and who refuse to deal with each other rationally when it comes to settling the important issues of a divorce. Because of this, court’s have to rely on “guardians ad litem and other professionals to obtain some of the information a court should consider in deciding a contested custody case. Hopefully, the person who is hired in your case has the training and background to furnish a fair and honest report to the judge. Before you are forced to hire a “GAL”, though, you should make sure.
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