When dealing with a divorce or a child custody case, the focus is primarily on the adults as they argue it out and come to terms. But this focus misses an important part of the equation: that of the child themselves. How do the courts ensure that the child’s best interests are being taken care of?
The answer is that they sometimes appoint a Guardian ad Litem (often referred to as a GAL). This is an individual who has specific training and certification to help gather the information that the courts need to ensure that the child (or children) in question are having their needs met. They can be an ally or an enemy to the parents, depending on that parent’s particular qualities and the way they interact with their child.
We’re going to dive deeper into this topic today to understand what a Guardian ad Litem is, what duties they have, how those duties are assigned, the types of questions they ask, what information they’re looking for to best assist the courts, and if their word is final.
What Does a Guardian ad Litem do?
A Guardian ad Litem acts a little like a detective in some ways. Their job is to find the truth of a situation in order to provide those details to the court so they are able to make an informed decision in regards to issues like child custody. These details could be related to a number of different issues such as relocation, timesharing, allegations of domestic violence or substance abuse, or the like.
In order to get all this information, a Guardian ad Litem conducts interviews with parents and the children themselves. However, not every Guardian ad Litem looks for the same things or tries to get to the bottom of the same questions. It is the courts, rather, that will set or limit the Guardian ad Litem’s duties. This means that your experience with a Guardian ad Litem could be entirely different from a friend’s experience with one.
While a Guardian ad Litem will conduct interviews with parents and children, they may also question other individuals that could provide more context to them. For example, they may speak with a child’s teachers or doctors or a number of friends or family members that each parent recommends. Again, however, this isn’t the same for every case. A Guardian ad Litem may only need to speak to the parents and children to find their answers.
But it is often the case that they will speak to collateral sources to form a more clear picture of the situation. This is because the parents and the children are at the root of the questions being asked, so they are less objective sources. A collateral source is often the best way to get the kind of impartial information that a Guardian ad Litem needs in order to fulfill their duties.
In addition to these interviews, a Guardian ad Litem is also likely going to need to review various documents related to the case. These could be court documents, documents from the child’s school, their doctors, written communications between the parents, or more.
The information gathered during the investigation period is used to prepare a written report for the courts, though they may also be called upon to testify directly. If it had been ordered within their appointment, the Guardian ad Litem make recommendations on the issues of the case, such as who should be granted custody, what the parenting schedule should be, what the holiday schedule should be, whether there should be any sort of mental or physical evaluations conducted, among many other things that could be applicable. Although many judges will place a great deal of weight on the recommendations by a Guardian ad Litem, a judge is not beholden to their recommendation. The final say will always fall on the judge’s shoulders, though it often aligns with the Guardian ad Litem’s recommendation.
What Does a Guardian ad Litem Ask and Look For?
The questions a Guardian ad Litem asks can vary heavily from case to case. But, in general, their goal is always to determine what is in the child’s best interest. Every question they ask is going to be used as a foundation within their final recommendations, whatever that may end up being.
The Guardian ad Litem will need to ask questions that provide a good history and background of each of the parents as well as how the family has generally conducted itself prior to litigation.
They are also going to want to figure out if the child’s needs are being met. Are they being fed? Do they feel safe with mommy? Do they feel safe with daddy? How do their parents provide for them? Did either parent ever hurt them? How does the child see his or her parents interact? Is the child being influenced by either parent?
Another question that a Guardian ad Litem will ask, often starting their interview with it, is whether or not the parents coached the child on their answers. This would reflect poorly on the parents and often causes the whole process to take longer than it had to. It’s always best to tell your children to answer the Guardian ad Litem’s questions honestly, rather than to try to influence what they’ll say.
The Guardian ad Litem will typically meet with the children twice; once with each parent present. This helps the Guardian ad Litem to see, first-hand, how the children and each parent interacts. One thing often looked for is whether the children act differently when they’re with a parent versus what they may have said when they weren’t in their presence. How does the parent do at directing and parenting them? Do they seem to provide stability in the home? Is the home clean and equipped to care for the children?
Since a judge tells the Guardian ad Litem what they are to look for, it could be anything from just figuring out what the child’s life within the family is like to discovering whether or not either parent abused drugs, the child, each other, or partook in other criminal activities. The answers to these can greatly change the Guardian ad Litem’s recommendations.
Is a Guardian ad Litem’s Word Final?
No, a Guardian ad Litem’s word is not final. The judge’s word is final, the Guardian ad Litem simply offers a recommendation to the judge. However, judges rely on Guardian ad Litems when making their decisions and this means that an unfavorable report could negatively affect your chances of getting custody.
Thankfully, you don’t need to just stand by should you have received an unfavorable report. You can challenge the report. Was it accurate? Thorough? Were the issues properly addressed? Did they favor one parent over the other by spending more time with them, thus resulting in an unfavorable outcome? These are just a few of the issues that may inspire you to challenge the report the Guardian ad Litem submits.
Can the Guardian ad Litem speak to my Child’s Therapist?
Your child has a privilege with his or her therapist, just like you do if you see a therapist for any reason. Although parents are often told what is going on within the therapy so the parents can continue to help the children while at home, when the Court gets involved, your child’s privilege goes on lock-down. This means that the Guardian ad Litem appointed to do the investigation cannot speak to your children’s therapist unless and until your child’s privilege is waived by the Court.
This waiver can only be granted after a second Guardian ad Litem (often referred to as a Limited GAL or a Special GAL) is appointed with the narrow focus of whether or not the child’s privilege should be waived to allow information gleaned by the therapist while working with the child should be admissible in court.
There are times that a Limited GAL may come back and say that, “No, the child’s privilege should not be waived,” even in cases where both parents may want the privilege waived. So, just having a Limited or Special GAL appointed does not mean the waiver will definitely be allowed. Whether that relationship needs to be protected for the child to feel safe speaking to the therapist is a main focus within these types of investigations.
Is There Any Way to Get Help?
If you are going through a divorce and trying to get custody of your children, then you should work with an experienced attorney in order to better increase your chances. They will be able to help you through the entire process.
If you are nervous about having to work with a Guardian ad Litem then you may also want to consult an attorney, as they will have the necessary experience to answer your questions and help set your mind to rest. Should there be an issue in the report that the Guardian ad Litem submits, an attorney can help you determine the best way to challenge the report.
Our firm has extensive experience helping our clients prepare for the GAL interviews, creating exhibits to present to the GAL in an organized fashion to support the client’s position and desired outcome, and even taking the case to trial if the GAL does not conduct the investigation properly or is biased and makes recommendations against our client. Do not hesitate to reach out to us right away!