In a case where custody is litigated in court, there are at least two attorneys. Your attorney, who represents you – and has a duty to represent your cause zealously; and his attorney, who, of course, has the same obligations to your husband that your attorney does to you.
It doesn’t matter whether your dad or your great uncle or your ex husband is footing the bill for your attorney, your attorney represents you and only you.
So, that means that no one is representing your child’s interests to the court. And, in a custody case, where the standard is quite literally “the best interests of the child”, well, that’s kind of a problem. Right?
Because your attorney will argue that what you want is in the children’s best interests, and your child’s father’s attorney will argue that what he wants is in the child’s best interests. Hey, maybe you have a good argument. Maybe it’s the truth. But there’s no hiding the fact that your attorney works for YOU, and does not work for your child.
In fact, in all my years of experience, I rarely meet the children involved in my cases. In fact, I think there’s a pretty good argument that me meeting a child (which would mean that the child is in my office and – potentially – aware of what’s happening) is patently inappropriate. I always discourage clients from bringing their children (except maybe children under the age of a year) to appointments and, when they do, often ask that the children stay in the waiting area.
I like kids! I have one of my own, and one on the way! I really love children, actually. But it’s not appropriate for a child to be aware of the proceedings, and, in fact, it can be bad for their physical and mental well being. I don’t want opposing counsel to say that you brought your child to a meeting with me, effectively telling the child about the divorce and/or custody case, and that you aren’t aware of or capable of serving the child’s best interests! Eeeks! Definitely count me out on that one. So, anyway, suffice it to say: I rarely meet the children, and that’s as it should be. After all, I don’t represent them.
I represent women, and women only. Specifically, women in divorce and custody cases in Virginia.
That’s where a Guardian ad litem comes in. A Guardian ad litem is an attorney appointed to represent the interests of the child or children.
Just like you and your child’s father can hire attorneys, a Guardian ad litem is an attorney appointed to represent your child. That doesn’t mean that your child will have to appear in court to testify as a witness, like you may very well have to do. In fact, we almost always keep children out of the courtroom entirely – it’s not good for them. Occasionally (as in, very seldom), a child will meet with a judge in camera (that is to say, in private, in his or her office) and discuss a case, but, again, that’s super rare. It’s very, very uncommon for a child to appear in court, and I’ve never had a case where I’ve called a child to testify, though I suppose it could happen.
A Guardian ad litem will testify for your child, both in the form of making a written explanation of his or her findings to the court, and also in the sense that, just like your attorney and your child’s father’s attorney, he or she can question witnesses, introduce evidence, and making opening and closing arguments at trial.
But will YOU have a Guardian ad litem?
If there are issues beyond the normal – two loving, basically decent parents who both just want as much time as possible with the child – chances are good that you will have a GAL appointed. In cases where abuse is alleged, whether physical or sexual, or if there are substance abuse or mental health issues, a GAL will almost always be appointed. If there’s a big issue – like a military deployment or a move to a different state – there may very well also be a GAL appointed.
I think courts lean to being more generous with GALs than less. Often, if one attorney makes a motion for a GAL, one will be appointed.
Who pays for a GAL?
You do! You and your husband typically share the cost of the GAL. The GAL’s hourly rate is probably similar to your attorney’s – between $150 and $300 an hour, on average.
But I can’t afford a Guardian ad litem!
The court will sometimes offer a payment plan, and you often don’t have to pay a retainer up front, like you might with your attorney.
You might also ask the clerk’s office in your court where there’s any payment assistance available, especially if you’re lower income.
How do I work with a Guardian ad litem?
That’s a great question. As you’ve probably already realized, working with a GAL can be kind of tricky – after all, they exist to judge you, and ultimately to tell the judge what they think! If that’s not scary, I don’t know what is!
Still more questions? That’s what we’re here for! Consider attending one of our custody seminars or set up a confidential appointment with one of our attorneys today by calling 757-425-5200.