Working with a Virginia Guardian ad Litem

Posted on Oct 2, 2017 by Katie Carter

For moms facing a custody case, nothing strikes fear into their hearts quite like the possibility of working with a Guardian ad litem.  As a mom myself, I can understand the fear.  A lawyer (yes—a lawyer!) will have the opportunity to talk to you and your child’s father and even your child (without you present!) and, ultimately, make  a recommendation to the judge about what is in the child’s best interests.  I agree – that’s tough.  Infuriating, even.  Especially when the Guardian ad litem doesn’t really do his or her job.  Unfortunately, sometimes, that happens.  Just like anything else, there are good and bad people in any profession.

Guardians ad litem occupy a difficult space in a custody case.  Technically, they are attorneys appointed to represent the child’s interest.  In some ways, that’s good.  Because of the Guardian ad litem’s role, kids don’t often have to come to court.  That’s pretty rare, in fact.  We like that.  No one wants to traumatize a child by forcing them to testify in court.  That kind of thing can leave deep emotional scars on a child. On the surface, all of that seems good.  The problem, though, in many cases is that the Guardian ad litem’s opinion is of almost supreme importance to many judges.  For many moms in the middle of custody cases, it can feel like Guardians ad litem make snap decisions based on an insufficient amount of information, or without really listening to both sides of the story.  It can seem unfair for the judge to place so much importance on the Guardian ad litem’s opinion, when it doesn’t feel like both parents have been fairly treated.   But then you’ve probably also heard that it’s virtually impossible to get a Guardian ad litem removed – and that’s true.

In fact, the subject came up a week or so ago at one of our attorney meetings, and none of the attorneys in our office had even attempted to have a Guardian ad litem removed.  Without being too dramatic, it’s like suicide to your case.  You don’t want to make a Guardian ad litem who already dislikes you completely hate you!  You have to remember that the Guardian has a very powerful role in your custody case, and the more you alienate him or her, the worse of you (and your kids) will likely be.

What do I need to know to work with my Guardian ad litem?

Since you probably can’t get rid of your Guardian ad litem (I’m telling you now, banish any thoughts of removing your Guardian ad litem from your mind right this instant!), you’re going to need to learn how to work with him or her.  I know, I know – that probably sounds distasteful.  You hate him or her, obviously.  And, chances are, you feel like he or she has been unfair in his or her decision making.  Since I haven’t been there throughout, I can’t really agree or disagree with you.  I can say, though, that there are cases where I feel like the Guardian ad litem’s behavior has been particularly egregious.  Sometimes, I do feel like one side or the other could never do anything right, as far as the Guardian ad litem is concerned, no matter how hard they try to work within the framework imposed on them by the court system.

It’s like Mr. Darcy said, in Pride and Prejudice, “[m]y good opinion, once lost, is lost forever.”  Lizzy says, “That is a failing indeed!”  And she’s right, of course—in life, as in everything, it’s important to be flexible.  To recognize our own snap judgments, misdeeds, and minor mistakes—and to constantly strive to correct them.  But, unfortunately, I don’t always see that happening with Guardians ad litem.  Maybe they feel like the stakes are too high, since it’s the children who often suffer from their parents misdeeds and il considered choices.  I don’t know.

I’ve never worked as a Guardian ad litem (who wants an attorney who only represents women to be the Guardian ad litem?  I’d be viewed as never able to be impartial – and they would be right in thinking that!), so it’s hard for me to get in their heads. It is important, though, to think from their point of view, and to try to temper your feelings and opinions in your dealings with a Guardian ad litem.  To them (just like to the judge), it’s not emotional.  That probably seems crazy to you, but it isn’t emotional or personal to them.  They’re just trying to do their job.  Whether you agree or not (obviously you probably don’t), you still have to work within their framework.  You still have to take pains to be sure that you don’t seem volatile, emotional, or unstable to any kind of degree where you can’t put the needs of the children first.

To that end, it’s really important that you let your feelings about your child’s father take a backseat to what you think is most important for their welfare.  It’s all too easy to think that the Guardian ad litem is, more or less, a custody case referee—but that’s not a good way to think.  It’s not like the Guardian ad litem will FINALLY call him on his behavior; a Guardian ad litem isn’t a sounding board for you to air your various grievances about him.  In fact, if anything, that kind of behavior on your part will likely undermine your case for custody. You want to let the Guardian ad litem make up his or her mind about your child’s father.  You don’t need to feed him or her the details.  Focus instead on making your case as strong as possible, showing your willingness to put the child’s needs first, and, also, your ability to promote the child’s relationship with dad.  After all, custody cases are analyzed based on the ten best interests of the child factors, so you want to keep those in mind in every single conversation you have with the Guardian ad litem.

What are the ten best interests of the child factors?

So glad you asked!  Virginia Code §20-124.3 includes ten factors, and their importance in a custody case really can’t be overstated.  You’ll definitely want to know them, and keep them in mind as you deal with your Guardian ad litem.

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;

2. The age and physical and mental condition of each parent;

3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;

4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;

5. The role that each parent has played and will play in the future, in the upbringing and care of the child;

6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;

7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;

8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;

9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and

10. Such other factors as the court deems necessary and proper to the determination.

What should a Virginia Guardian ad litem be doing?

Guardians ad litem are tricky. But they’re often necessary. And, perhaps even more to the point, we often don’t have a choice – they’re appointed in cases when a judge deems it necessary based on the best interests of the child, so sometimes, we just have to grin and bear it.

It’s scary, to trust so much to someone you don’t know. Someone who isn’t your attorney. Someone who’ll meet with your child, probably (really, almost certainly) without you present, and will ultimately make a recommendation regarding custody to the court.

Lots of people hate their guardian ad litems. They come in, telling us all the terrible things their guardian ad litem has done, and then wait, expectantly, for us to tell them how we’ll be able to jump in the case and have the guardian ad litem removed from the case immediately.

…But, unfortunately, that’s not really the case. Guardians ad litem, once appointed, are generally in the case to stay, and there’s very little that can be done to get rid of them. That’s the case almost without exception. I’ve heard of very few cases where guardians ad litem are actually removed from cases. And I’ve heard plenty of cases where some pretty crazy stuff happens. (It seems to me that custody cases have a pretty disproportionate number of people doing crazy things, though, so take that with a grain of salt.)

What should a guardian ad litem be doing?

So, before you know whether your guardian ad litem has breached some kind of duty to you or your child, you should probably know a little bit more about what their job should even look like – right? I mean, that’s probably the first step.

Lucky for you, that’s pretty specific. There’s a whole list of exactly what the required responsibilities are of a guardian ad litem for children. You can read about it here.  A GAL for kids usually meets with the kid, talks to them, conducts home visits, talks to the parents, etc., etc. A lot of times we hear complaints – the guardian talked to the child at school, the guardian talked to dad more than me, and on and on – but the reality is that, if these things are happening, that’s a good thing.

Sometimes, these things don’t happen. Hey, I’m not naïve. I know that GALs aren’t perfect. I know that, sometimes, things don’t happen the way you wish they might – certainly not the way they are described in the list. But…before you get all indignant…chill out.

What if my GAL is NOT doing those things?

Chances are still good that your GAL won’t be removed from your case. I know, I know – life isn’t fair, and on and on. Get it out of your system. I don’t say this to be cruel, I say this to encourage you to get your head in the game. Focus on what’s important. And what’s important? CUSTODY! Obviously.

So, regardless of whether you and the GAL are BFF or whether you hate her guts, you’re going to need to focus all of your considerable energy on doing whatever you can to make a favorable impression. Act like that person is going to be telling a judge what should happen to your children in a few months – because, chances are, he or she will be doing just that, regardless of your opinion of him or her. So, play nice.

My guardian ad litem already hates me! How can I fix the relationship?

I like where your mind is right now. I know some things may have gone down already that have made you feel like your relationship with the guardian ad litem isn’t the best. Rather than focusing your energy on how to have him or her kicked out of your case, you need to focus on how to repair the relationship.
To you, this is personal. It’s your kids. It’s important. It’s emotional.

To the guardian ad litem, it’s not personal. It’s professional. In most cases, you won’t go wrong with starting off a conversation by saying, “I think we got off on the wrong foot, and I just wanted to say I’m sorry. I just love my kids, and I want what’s best for them, and I think I was a little emotional when we first met.” And go from there.

It’s not easy – no one likes the taste of crow – but a little bit of humility now can serve you well in the future. And you’ll likely find that the guardian’s opinion isn’t nearly so formed as you might have thought. He or she is LOOKING to give credence to you; he or she is LOOKING to find reasons why the children might benefit from contact with you. It doesn’t give a GAL pleasure to recommend that kids be with one parent rather than both.

If you have an attorney, talk to your attorney before you start to take any big steps with the guardian ad litem – but you’re going to want to try to repair that relationship sooner rather than later.

If you still think your GAL is the worst person in the entire world, and you’re committed to trying to have him or her removed (even though you’ll likely fail), you should still try to play nice.  You should still try to do whatever you can to fix the relationship because, chances are, the GAL will not be removed.  Talk to your attorney, if it makes you feel better, and see if yours is one of the totally egregious cases where a guardian might be removable — probably not — and whether it’s worth the time and expense involved to try to attempt it.  (I mean, just think — if you try it, and lose — your GAL will really, really hate you…and THEN what happens to your custody case?)  It’s a huge risk.  And almost certainly one that’s not worth attempting, but, if it makes you feel better, you can at least talk to your attorney about it.

Where else can I get information about how to work with my Guardian ad litem?

Another good question.  You’ve really only got one shot at this, so you want to take your relationship with your Guardian ad litem seriously, and make sure that your custody case is as strong as possible. For more information, request a copy of our free report, “Beware the GAL” for tips and trips for dealing with a Virginia Guardian ad litem, and “The Cast of Characters in a Custody Case” to help learn who all the important players in your Virginia child custody case will be.  It’s important that you take the time now to get familiar with the court process and the various players so you avoid any potential missteps later on down the line.  Feel free to also give our office a call at (757) 425-5200 to schedule a one on one consultation with one of our experienced Virginia divorce and custody attorneys.  We’re here to help.