A GAL is a Guardian ad litem. A Guardian ad litem is an attorney appointed by the court to represent a person who, legally at least, is considered unable to represent themselves. In Virginia, we see GALs appointed in a couple of different scenarios – in cases where a party is incarcerated or where they are under a “disability” (either because or a physical or mental disability or because they are so old or so young that their age means they are incapable).
For my purposes, as a family law attorney, I usually see a GAL appointed in a child custody case to represent the interests of the child to the court. (I do, sometimes, see a GAL appointed for a soon-to-be ex-husband or a child’s father who is in jail, but that’s a bit outside the scope of this article.)
What does a GAL do?
A Guardian ad litem, or GAL (pronounced like the letters said individually, G-A-L, not as in “gall”) is a very important person in the context of a wider custody case. A GAL will undertake an investigation and, ultimately, prepare a report for the court that includes a recommendation. The recommendation may or may not be in line with the child’s specific, expressed wishes; the child could, in certain situations, still come to court to testify (though that is fairly uncommon here).
Does the judge follow the GAL’s recommendations?
The recommendation may or may not be followed by the court. Much of the time, the GAL’s opinion does carry a lot of weight, so that’s something you need to be prepared for in advance.
A GAL has a lot of power and it would be unwise of you to make an enemy of them too early on in the process.
Will the GAL listen to me?
The GAL should interview both parents and may even ask you to fill out a questionnaire – but, make no mistake, you should not use your time with the GAL to bash your child’s other parent. Be very, very careful what you say and how you say it.
The temptation is to think of the GAL as someone you can be honest with and to whom you can express your concerns – and that may be true – but you have to do so in a diplomatic way that does not create a enemy unnecessarily.
Who pays for the GAL?
Good question – and it depends. The court may ask you for information regarding your income and assess you a portion of the GAL’s fees; in some cases, the fee is covered by the court. You are more likely to have assistance with the GAL’s fee in juvenile court. In circuit court, you may find you and your child’s father share the cost.
Isn’t it expensive to have a third attorney involved in the case?
Yes.
Though a GAL doesn’t usually charge the same way an attorney in private practice would, their hourly rates – in the Hampton Roads area – are still several hundred dollars an hour usually. On top of paying your own attorney, these costs can mount quickly.
Can I get my GAL removed?
Probably not. Just because you think the GAL is biased or hasn’t done a good job does not mean that the court will usually let the GAL off the hook. The court often prefers to keep the same GAL throughout a case, so if you appeal or petition later for a modification, you will likely find the same attorney is re-appointed (unless they’ve died, moved, retired, or are on maternity leave or some other important reason).
One catch is that a GAL won’t necessarily follow your case up to circuit court if you divest the case from juvenile court – so that may be one procedural way to sidestep an unfriendly GAL.
Can I say I don’t want a GAL appointed?
Sure, you can. But I often find that if one side asks for a GAL, the court is likely to say yes because it means there’ll be someone else there the judge can rely on to help her make a decision. Judges like GALs, though I understand that this is a somewhat regional thing. Not everywhere will rely as heavily on GALs as we do in Hampton Roads courts, so – if you’re out of the immediate area – you may want to talk to a local attorney.
You can say no, but one can be appointed over your objection and that doesn’t remove your responsibility – if the court finds you have one – to pay part of the GAL’s fee. I know – that’s super unfair, right?
What you can do – and what is probably a better use of your time, if you know your ex and/or his attorney will likely ask for a GAL anyway – is to try to pick the GAL you want. Your attorney can help you with this, but we’ve worked with so many that we often know who does a better job, is more responsive, or less hostile to mothers in general. (It shouldn’t be, but that’s a thing.) Compared with taking whoever the court might otherwise appoint, being able to choose a GAL (even if the other side weighs in) is often really helpful.
A Guardian ad litem is a great person to have on your side and a really terrible person to have involved if they’re not on your side. You want to make sure you tread carefully in establishing a relationship with this person as your case moves forward – because, in all likelihood, you will see them again.
For more information about custody cases in Virginia, download a copy of our custody book for Moms or register to attend an upcoming Custody Bootcamp for Moms seminar.