The Guardian ad litem in my case isn’t listening!

Posted on Feb 7, 2022 by Katie Carter


As you can probably imagine, issues with Guardians ad litem in Virginia custody cases are common. And it’s no wonder!

A Guardian ad litem is an attorney, appointed by the court, who represents the interests of the children involved in the litigation to the court. The Guardian ad litem (or GAL) undertakes a formal investigation where he or she interviews both parents and the children, too, before issuing an opinion prior to the trial.
The Guardian ad litem is there to represent the children’s interests – but that doesn’t mean that he or she is there just to tell the court what the children’s preference is. In Virginia, a child’s preference may be relevant, but it isn’t necessarily – and it doesn’t matter how old the child is at the time of the litigation!

Though most GALs do determine what the child’s preference is, he or she can make a recommendation that differs from what the child would choose if the Guardian ad litem feels another arrangement is in the child’s best interests. (After all, a child is a child and can’t necessarily make huge decisions about custody and visitation like a trained adult can!)

On the opposing sides, each parent will have the opportunity to make his or her own case. Each parent usually has counsel as well, making a total of three attorneys involved in a custody and visitation determination. Like mom and dad’s attorneys, the Guardian ad litem can conduct discovery, introduce evidence and exhibits, and question and cross examine witnesses. The Guardian ad litem even provides a report, usually just before trial, and can even make oral arguments during the hearing – including a closing argument.

In many cases, the judge relies heavily on the Guardian ad litem’s opinion, especially if the Guardian ad litem is one who has a good reputation in the local courts – and many of them do.

So, it’s probably no surprise to anyone with half a brain that many parents hate their Guardian ad litem with a passion. It’s not comfortable, being in a position where someone comes into your home and tries to judge your parenting. It’s not comfortable leaving decisions as important as custody and visitation up to a near total stranger. It’s already an expensive, scary, and overwhelming time, and it’s easy to feel like your interests and/or your children’s interests are not adequately being represented, especially if it feels like the case is also getting away from you.

Custody cases are uncomfortable, difficult, time consuming, unpredictable, and expensive. If you’re reacting to the experience, you’re human! But you’re also going to want to tread very, very carefully and consider the options available to you before acting out of fear or anger or sadness.

In almost every case I’ve ever worked on where a GAL has been involved, my client has worried about the role the GAL has played and will play. They often accuse the GAL of liking dad more, or of talking to him more. Of not listening to her. Of not talking to the kids. Of not doing enough to stop bad things from happening. Of about a million different things.

And, again, I’ll admit it: there are some bad GALs out there, who are almost impossible to reach during the case, and who don’t do their jobs. But there are more good GALs, I think, than bad ones – though that doesn’t necessarily mean that you’ll agree with the conclusions the GAL reaches in your particular case. That’s always the danger, right? That you’ll get a GAL appointed, jump through all the hoops, only to find out that the GAL’s recommendation is not what you wanted to hear.

So, what do you do?

Well, when you’re angry or upset or worried about the role your Guardian ad litem is playing in your custody case, the first thing you should probably do is talk to your attorney about your options.

Oftentimes, I find that a client is more inclined to do something hasty that they’ll later regret, or that will have implications on their custody case that they really can’t understand or foresee. There’s a lot at stake in a custody case, so you want to tread carefully. Not only that, but custody and visitation is always modifiable later based on a material change in circumstances, so you’ll want to remember that in the very, very real situation where custody and visitation is litigated again at some point in the future, you may find yourself working with this Guardian ad litem again.

So, that’s both a warning and a suggestion – be kind to this GAL, and work with this GAL, because the court will re-appoint the same GAL in the future, if at all possible. Unless your GAL is retired or has moved or is not taking Guardian ad litem work at some undetermined point in the future, your chances of seeing this person again are very good. So, don’t make an enemy of him or her too early in the game.

Not only that, but keep in mind that custody cases are often a progression. Even deadbeat dads who didn’t play a huge role in custody and visitation will often be given a chance to parent. Just because the Guardian ad litem supports dad’s parenting time doesn’t mean the GAL is against you or doesn’t like you or doesn’t think you’re doing a good job. Don’t take a recommendation that you don’t particularly like or support as evidence that the Guardian ad litem isn’t on your side – or feel like you need to leave it all out on the table at whatever opportunity you’re given.

If dad runs into an issue later, when custody is modified, his behavior between this hearing and the next opportunity, the Guardian ad litem’s report may look very different.

It’s not necessarily that your Guardian ad litem isn’t listening. It’s not necessarily that your Guardian ad litem doesn’t like you. Sometimes that’s the case, of course, but it isn’t always. And, as a first step, talk to your attorney!

It’s not easy to sit back and let a virtual stranger render an opinion in your custody and visitation case without doing anything – but you need to be very, very careful. Custody cases are difficult, and you’ll want to follow the advice of an experienced attorney who has navigated the system over and over again.

For more information, or to schedule a consultation to discuss your custody case with a Virginia custody attorney for moms, give us a call at 757-425-5200.