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 involving custody of children. 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 appears to be a tendency for judges to rely solely on what the “GAL” reports, rather than listening to the evidence that is presented at the hearing.
I recently had a divorce case in which my client had had temporary custody of her children for over a year. The father continued the final hearing several times. You did not pay child support. We agreed on 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 into a fight with her boyfriend and one of the children had heard her insult him.
The older of the two children 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 miss kindergarten to visit her, even though she testified at trial that her boss would have been willing to change her work hours to let her daughter go to school.
At the hearing, we refuted most of the things that the “GAL” had found in favor of the father and, with the exception of the screaming boyfriend, almost everything that she had found wrong with the mother. He did not appear to defend his report, although I 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. In his order, he did not address the many things that we had proven in the trial in favor of the mother. He said that the father should have to give back the back support he had neglected, but on top of that, it was as if he had slept through the entire hearing, or had waited long enough to have forgotten everything that was tried on.
It is an unfortunate fact in our legal system that there are not enough judges for everyone. As a result, cases are often decided on the basis of hasty evidence, collected 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 should not set aside his obligations of impartiality and rely on evidence produced outside of his presence by someone who has little training to understand what he should be trying to find out. So if you are faced with the choice of hiring a “GAL” to make your 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 should make a home visit with both parents when the child is present. She should talk to the child, not to ask him where he wants to live, but to learn about his likes, dislikes, skills, and communication skills. Sometimes simply finding out what experiences a child has with each parent can reveal a lot of information about the family’s situation.
2. Find out what training your “GAL” has. If you have just received a certificate for a two-day course, you are not really 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 issues, you can be of great help in providing the correct information to the court.
3. What will your job cover? Hopefully, it will be your duty to report the facts to the court. That is, it will not make any recommendations. The judge must consider your report, but should never relieve the court of the obligation to consider all factors before making a decision on custody.
It is always best if parents can make child custody decisions with each other. 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 with others rationally when it comes to solving the important issues of a divorce. Because of this, courts have to rely on “guardians ad litem and other professionals for some of the information that a court must consider when deciding a contested custody case. Hopefully, the person hired in your case has the training and skills. background to provide a fair and honest report to the judge, however, before you are forced to hire a “GAL”, you need to make sure.