One of the most misunderstood elements of a custody case is the role of the Guardian ad litem. A Guardian ad litem is an attorney – not a child welfare expert, a therapist, or a developmental specialist – appointed to represent the interests of the child to the court. Though, in many cases, the parents themselves are responsible for paying for the Guardian ad litem, the GAL (as it is often abbreviated) does not represent the parents and is not answerable to them.
How is a Guardian ad litem appointed?
It sometimes happens on a motion from one parent or the other; attorneys often also make a motion for a GAL to be appointed as well.
In contested custody cases, a GAL is often appointed – sometimes even over the objection of the parent(s) or without a specific motion being made. Judges, in general, seem to like having someone other than them who can get involved on a more detailed level and who can make a recommendation to them for custody and visitation. So, even if a GAL is not specifically requested, or appointment is even opposed, you may find that a Guardian ad litem is appointed anyway.
How does the Court decide who to appoint as a Guardian ad litem?
If attorneys are involved, the attorneys may agree to a specific GAL being appointed or may make a recommendation to the court regarding the GAL he or she would like to see appointed.
In cases where the parties are pro se, it is possible to recommend a specific GAL (assuming, of course, the pro se parties know who to recommend), but most often the Court will appoint an available GAL from the court appointed list. Guardians ad litem who are registered by a specific court will be on a list and the judge can choose. Some judges tend to choose the same GALs (ones they like, obviously!) over and over; others will just go down the list and appoint a GAL in a sort of rotation.
How is a Guardian ad litem paid?
Usually, the parents are responsible for paying for the Guardian ad litem. In many cases, especially in juvenile court, the Court will assess the parties’ ability to pay and may reduce the amount payable by the parties if their income(s) are low.
Usually, Guardian ad litems work at a reduced fee compared with regular lawyers in private practice but – even if you’re only responsible for half – the fees can still add up dramatically, especially if you are separately paying your own attorney to represent you.
What does a Guardian ad litem do?
Guardians ad litem do a LOT. In fact, in Virginia, there’s a whole manual that describes what their duties and obligations are. You can read it – in its entirety – here: https://www.vacourts.gov/courtadmin/aoc/cip/programs/gal/children/gal_performance_standards_children.pdf.
Basically, the GAL is an attorney – just like your attorney and your child’s father’s attorney – and, as such, is able to conduct discovery, introduce evidence, question and cross examine witnesses, and a whole lot more. Essentially, in trial, the amount of time you get for a hearing will be divided in thirds, with a third each for you and your attorney, your child’s father and his attorney, and the Guardian ad litem.
In advance of trial, at a minimum, the GAL should have interviewed each parent, conducted a home visit, interviewed the child, and prepared a report for the court that details the summary of their investigation as well as providing a recommendation to the court for custody and visitation.
Does the child’s preference matter?
Yes … and no. In Virginia, there’s no specific age at which a child can express a preference, unless you consider that age to be 18. Because the GAL will interview the child, sometimes the child’s preference will be part of that discussion and, depending on the child’s age, maturity, intelligence, etc., the GAL may include the child’s preference as part of her report or recommendation. It may even be specifically mentioned in court though, more than likely, the child will not be present to testify himself or herself.
What if the GAL doesn’t do his or her job?
It happens, unfortunately. There are good GALs and bad GALs – and, I can tell you, I’ve heard some horror stories. In most cases, though, the parents hate the GAL with a fiery burning passion. That doesn’t necessarily mean the GAL isn’t doing his or her job, but it CAN mean that.
Please understand that I am not discounting the possibility that your GAL is doing nothing or, worse, is doing some things that are really unhelpful and unfair for your custody case. The reality of the situation, though, is that it’s almost impossible to get a GAL removed – and it’s borderline suicidal to attempt it. I’m speaking in generalities, obviously; every case is something we review on a case-by-case basis, so if you have questions you should talk to an attorney about them.
In most cases, not only can you not get a GAL removed, but the same GAL is likely to be re-appointed again if your case is brought before the court for a modification later on. That’s why it’s so important to work hard to make a good first impression and to continue to try to stay on the GAL’s good side, no matter how difficult that seems.
What goes into the Guardian ad litem’s report?
Ultimately, the GAL will write a report that includes the summary of his or her investigation and give a recommendation for custody. This is always sort of a hard thing for clients to experience so – if this is you – be prepared.
You may – or may not – receive a physical copy of this report. In fact, in the Virginia Beach Juvenile Court, the Chief Judge recently issued an Order saying specifically that parents won’t receive copies of the GAL reports prepared in their cases. They can read them – but not take screenshots or make copies – of the reports themselves.
They can read them either in their attorney’s offices or at the courthouse – but that’s it. In fact, even attorneys who receive copies of the reports are supposed to return them to the GALs after the litigation ends.
It has sort of always been an unspoken rule that attorneys ask GALs before sharing the reports with clients, but I – personally – have never had an issue. I’ve had – and heard of – cases where the GALs specifically requested that their reports be kept under the seal of the court, so the clients couldn’t have them – but those were for specific cases where that was warranted.
It’s a complicated relationship and one that can fall apart very, very easily. It’s best to know ahead of time how to prepare for this relationship and how to keep it from running off the rails – even if you’re angry, overwhelmed, and sad in equal measure. Custody cases are not for the faint of heart!
For more information, to request a copy of our custody book for moms, or to register to attend an upcoming Custody Bootcamp for Moms seminar, give our office a call at 757-425-5200.