Removing a Virginia Guardian ad Litem

Posted on Mar 10, 2017 by Katie Carter

In Virginia, as in most states, the standard we use for custody cases is the best interests of the child. In Virginia, as in most states, we have a number of factors that comprise, basically, what factors we believe account for what types of choices, when it comes to custody and visitation, are in a child’s best interests. Even still, though, it’s not always easy to tell exactly what’s in the best interests of a particular child under a unique set of circumstances. As far as a judge is concerned, a little bit more evidence will be necessary in order to make a determination. In Virginia, we use a Guardian ad litem to help determine, and ultimately to make a recommendation to the family law court, what’s actually in the best interests of the child.

A Guardian ad litem is an attorney appointed by the court to represent a child. A Guardian ad litem has a number of different responsibilities, but, in most cases, they meet with both parties, meet with the child, and communicate between the attorneys on both sides. A Guardian ad litem can issue discovery, get evidence admitted that the parties’ attorneys can’t, and, ultimately, gives a statement to the judge about what, in their opinion, is going to be in the child’s best interests.

In most cases, judges rely heavily on the opinion of Guardians ad litem. In most cases, the parties hate the Guardian ad litem.

At some point, during many, many, many custody cases, we have a discussion about removing a Virginia Guardian ad litem.

You should know, before we go any further, that it’s really not possible. I mean, technically, it IS possible; Guardians ad litem have been removed before, but you should assume that it won’t be possible in your case. Even if it were possible, you’d spend a ton of money (and, of course, this would be money that wouldn’t actually move your case any further along) trying (and, likely, failing), and then you’d for sure have a Guardian ad litem who hates you–which could do all sorts of additional damage to your case.

You should know that most moms (and probably dads, too, though I can’t say for sure because I’ve never represented one) believe that their Guardian ad litem hasn’t done their job. The Guardian ad litem favors the other side. The Guardian ad litem is unethical. The Guardian ad litem hasn’t visited the kid. The Guardian ad litem….on and on and on.

I’ve heard it all, honestly. And, in almost no case is whatever you think is enough to petition to have a Guardian ad litem removed is it actually enough to get a Guardian ad litem removed. Everyone hates the Guardian ad litem. It’s just the way it is. And, if you plan to have any hope of success in your case, you’re going to have to move past your feelings about the Guardian ad litem, and focus on how to put on the best possible custody case. The damage you risk inflicting on your case is far greater than the extent to which you could hope to benefit by the removal of the Guardian ad litem.

Because you haven’t hired the Guardian ad litem, and the Guardian ad litem doesn’t work for you, the Guardian ad litem really doesn’t care what you think of him or her. Ultimately, you can’t fire the Guardian ad litem anyway, so he or she will continue to get paid (and continue to have a great deal of power over your case) regardless of anything you might do.

Side note: Yes, that’s right–you read me right. The Guardian ad litem is paid. In circuit court, you’ll for sure have to pay for the Guardian ad litem. Usually, mom and dad split the costs of the Guardian ad litem. In juvenile court, the court will look at your financial situation to determine whether or not you’re able to pay a portion of the Guardian’s fees. As you can imagine, the fees can be pretty high, too, because the Guardian is also an attorney, and bills at a rate like many other attorneys. You also won’t get a statement of your fees during the case; most Guardians ad litem submit a list of their fees at the final hearing, and you’ll have to figure out a way to pay your portion at that point.

Anyway, long story short, if you hate and detest your Guardian ad litem, you’re not alone. If you’re planning on taking steps to try to have your Guardian ad litem removed, though, you’ll want to talk to an attorney first. In 99.999% of cases, it’s a terrible idea, and it’s going to cause much, much more harm to your case than you could possibly hope to benefit if, by whatever miracle, your Guardian were actually removed. It’s time to face up to the fact that your Guardian is your Guardian and will remain your Guardian throughout your case. (In fact, if you go back to court later, you’ll likely have the same Guardian ad litem re-appointed.)

There are plenty of reasons, too, (besides the fact that he or she can’t really be fired) that your Guardian ad litem won’t care at all if you hate him or her–in fact, it may be an important part of their case strategy.

Keep in mind that, just because your Guardian ad litem talks to your husband more doesn’t mean that he or she favors your husband’s side. In fact, the Guardian ad litem’s choices have a lot more to do with the type of case you’re facing than anything else. An example? I’m happy to provide one, so glad you asked.

I had a case a little while ago where dad was gone for years and years of the child’s life. By the time we went to court, the child was ten years old–and hadn’t had more than a phone call and one supervised visit with the child in more than five years. Mom had done everything up until that point and, by all accounts, she was doing a tremendous job of it. Of course, when pressed, dad said that it was mom’s fault that he didn’t come around more; it was mom who made visitation difficult, and, as a result, it was really mom’s fault that he stayed away. Mom was furious–and she definitely hated the Guardian ad litem. Her feelings grew worse over time, when it became obvious that the Guardian ad litem wasn’t really all that interested in talking to her.

I tried to explain, and I think eventually I was successful. Even though dad had made some allegations against her, the truth was that mom wasn’t the unknown entity here–dad was. The question wasn’t whether mom was an appropriate custodian–the question was more whether what was appropriate for dad to develop a relationship with the child. Of course the Guardian ad litem spent more time talking to dad than mom! Right? By all accounts, mom was already doing a great job.

I think, too, sometimes a Guardian ad litem wants to annoy the parents. That way, the Guardian sees their true colors, instead of just putting on a happy face. By making the parents mad, the Guardian can see what the parents are really like–and that can help the Guardian cut through the B.S. really quickly and make a thorough and accurate assessment of the situation.

Chances are, you won’t be able to get the Guardian ad litem removed. Your best bet is really just to focus on following the rules, listening to the Guardian ad litem’s recommendations, and doing everything possible to make sure that, when you go to family law court, your case is as strong as possible.

If you have family law concerns about your Guardian ad litem or what options you have in your case moving forward, give our office a call at (757) 425-5200.