Do I Want a Guardian ad Litem Appointed?

Posted on Jan 10, 2020 by Katie Carter

A Guardian ad litem is an attorney appointed on behalf of a child in a custody case. We really don’t bring kids to court to testify; there won’t be a moment where the child has to tell the court whether he’d prefer to live with mom or dad. That just doesn’t happen.

But, of course, in a custody case, the prominent parties are typically mom and dad, and their respective lawyers. Their lawyers will, obviously, argue THEIR respective points. But where does that whole “best interests of the child” standard that you’ve heard so much about come in?

Well, it’s with the Guardian ad litem. Though a child isn’t officially old enough to have a preference until he or she has turned 18, it is through the Guardian ad litem that information related to the children will get in. In some cases, the GAL will specifically tell the court what the child’s preference is (though this is not always the case), but in all cases the Guardian ad litem will make a specific recommendation to the court regarding what custody and visitation arrangement is, in his or her opinion, in the best interests of the child.

So, needless to say, the Guardian ad litem is a really important person in a custody case.

But do you want a Guardian ad litem in your case?

It’s a good question. In a lot of cases, there’s not a lot of choice. Judges like GALs, and often appoint them, especially if one side or the other made a motion requesting that one be appointed. You can see the judge’s point of view: at least, with a GAL, there’s one other person in the courtroom who is looking out for the child and can, at least presumably, give the judge a less biased view of the facts.

It’s risky, though. A Guardian ad litem can be a bit of a wild card and if there’s anywhere in the world there’s not that much room for a wild card, it’s in a custody and visitation case. It’s scary to think that someone who is a virtual stranger to you would have the kind of power that would allow him to make a recommendation to a judge about what kind of custody and visitation arrangement is appropriate in your case.

There are a lot of things about custody and visitation cases that are probably pretty tough pills for parents to swallow, and this is one of them. But there’s also no denying that having a GAL on your side can be one of the most powerful indicators of success in a custody and visitation case.

So, do you want one?

Maybe! And, anyway, you may not have much choice. In an ideal world, you’d be able to pick who you wanted as a GAL. In many cases, especially where both parties attorneys agree about needing a GAL, the attorneys help their clients to pick an appropriate person to serve as GAL. If you have to make a motion in court, you may end up with whoever the judge appoints – which may just be whoever is present in the courtroom at the time. Attorneys who can be court appointed are often found in the courtroom, waiting to get appointed to cases – so that can happen. If it were my case, though, I’d prefer to have some say in who was appointed. Like every other kind of people, there are good and bad GALs.

Can I fight the appointment of a GAL?

Yes, of course. If your husband’s attorney makes a motion, you can oppose it. It’ll be up to the judge, though, and I think you’re probably not all that likely to be successful. Again, judges like having someone else there to help make a decision.

What can I do to make a good impression on my GAL?

Now THAT’s a good question! It’s far better to be proactive than to be the ostrich burying your head in the sand. Chances are good a GAL will get appointed in a custody case, and your efforts are far better spent trying to plan how to make a good impression.

Most GALs will start their representation with a questionnaire, which you should fill out promptly. If you have an attorney, your attorney should help review your answers before they’re submitted, too.

Focus on how you meet the requirements of the best interests of the child factors (LINK), rather than detailing the ways your child’s father falls short. In fact, it’s probably a better idea to avoid criticizing your child’s father in general and instead allow your GAL a chance to make up his or her own mind.

Be transparent, but don’t overshare. If you have questions, talk to your attorney about how to handle specific situations.

The GAL will likely perform a home visit, and will also interview the child (assuming the child is old enough to participate in this conversation). You should be prepared for this.

A Guardian ad litem can be a really important ally in your custody case, but you have to tread carefully. For more information, to request a copy of our custody book, or to request a consultation, give our office a call at 757-425-5200.