How to Sue your Guardian ad Litem

In custody and visitation cases, Guardians ad litem are some of the most passionately despised people, and probably at least once a week someone asks me what they can do to either get rid of their Guardian ad litem or request that they be sanctioned for their behavior.

How do I sue my guardian ad litem?

This is a bit of a trick question. The answer? You don’t. You definitely, definitely don’t. The risk is just too great.

You have to remember a couple of things. Custody and visitation are modifiable, based on a material change in circumstances. If your case is one of the most contested ones (which, based just on the fact that you have a Guardian ad litem, I’m just going to go ahead and assume that it is), it’s not so much a question of IF you’ll be back in court again, but WHEN. These things are often litigated over and over again, as the parents argue that based on the changed circumstances, something different would be in the child’s best interests than what the judge or the parties agreed on before.

If your case is litigated multiple times, chances are good (very, very good) that your same Guardian ad litem will be appointed again. From the court’s point of view, it’s better to keep someone who is familiar with the case and the principal players than to have someone new involved each time.

So, it doesn’t matter if you hate her. It doesn’t matter if you think she’s totally incompetent. It doesn’t matter if you think she didn’t do her job, and she favors dad, and she barely ever spoke to you, and that she doesn’t give a rip about your child. Your Guardian ad litem is your Guardian ad litem.

Why can’t I file a motion to have my Guardian ad litem removed, or report her unethical and unprofessional behavior?

You think she doesn’t like you now? Threaten her livelihood and her professional reputation.

Even if she is the most forgiving person in the entire world who totally understands where you’re coming from, you taking that action will definitely place a big, dark cloud over your relationship with her. Where your kids are concerned, the risk is just too great. It just isn’t worth it.

Even if your criticism is logical and well founded, the risk isn’t worth the possible benefit. What are you hoping to get out of this? It’s virtually impossible to get a GAL removed from the case. Sanctions would only be awarded in extreme circumstances. And in the meantime you run the risk of the GAL hating you with a fiery passion that will seriously undermine every single attempt you make to secure the kind of custodial relationship for your children that you believe is in their best interests.

But what if my case is over? Can I sue her then?

Is your child 18? Then don’t sue your Guardian ad litem. If your child is 18, I imagine you have better things to do with your time that revisit issues from the past.

Just…don’t.

But my Guardian ad litem really isn’t doing her job!

That DOES happen. There are a lot of really, really good GALs out there, but there are a lot of crappy ones, too. If you’ve got a crappy one, I’m so sorry. Though, honestly, in many of the cases I’ve seen, it’s the BAD GALs, the ones who really haven’t done their jobs, who are the most difficult to work with after allegations are made against them professionally. The good Guardians ad litem are usually more magnanimous and forgiving; they understand that what you hate isn’t exactly them specifically but the job they’ve been forced to do.  Still, it’s a tough pill to swallow when somebody tries to sue you.

I mean, from a GAL’s perspective, it is a very, very difficult position. To be forced to talk to a child and her parents and ultimately make a recommendation for where that child should spend the bulk of his or her time… It’s a lot of pressure. For you, it doesn’t feel good to have someone poking around in your life, either. It’s probably a lot like if CPS were following you around, investigating you. I mean, really, having someone look through your refrigerator and pantry to make sure there’s enough food? Judging you on every little interaction? Talking to your kid? It’s enough to make anybody’s blood boil and those protective mama bear urges to surge wildly.

If your GAL isn’t doing her job, your best bet is still going to be to grin and bear it. If you’re professional, reasonable, and rational, she won’t be able to find much fault with you. Even if she doesn’t talk to you until right before the hearing, it’s best not to make too big of a stink about it.

Better yet, let your attorney try to track her down and figure out what’s going on. You’re probably best to not get involved at all, or at least only minimally to the extent that you need to in order to do what the GAL requires of you.

But my GAL hates me! Seriously, she HATES me!

Maybe you’re right. That does sometimes happen. But I do think it’s probably more likely that the GAL is equally mean to both you and your child’s father. Why would that be? Well, for this exact reason: the GAL doesn’t want either of you to think that she prefers you over your child’s other parent. So, Guardians ad litem are often pretty universally short, curt, and to the point.

You’ll probably also find that her report dwells on the more difficult parts of your case, and the things that make you the most uncomfortable. Well, it makes sense, doesn’t it? The GAL has to compare the real advantages and disadvantages of both of you, with a pretty heavy emphasis on the disadvantages. Those are often the factors that can really sway a case. It’s not that the GAL hates you, it’s more that her analysis would be incomplete without a thorough grounding in the facts.

So, what can you do about it? Well, you can’t help if you got off on the wrong foot. I don’t have a time machine, and, until I do, my advice will probably always be the same. Try to do what you can NOW to correct the unfavorable impression you may have created before. Behave with maturity, deal with the Guardian ad litem professionally, and keep your scathing comments about your child’s father to yourself.
There’s no question that working with a GAL is a difficult task. But don’t lose your cool or your temper and do something rash that would ultimately impact your custody case for, potentially, years to come.

The court won’t be surprised that you hate your GAL. The Virginia State Bar would probably view any allegations you made against your GAL with more than the usual amount of scrutiny. After all, you’re hardly unbiased here! Whether you’re right or whether you’re wrong, it’s really irrelevant.

Custody cases are about children, period. You should focus on being the best mother you can be, and parenting through all the ups and downs of a custody case, not on how to punish your GAL. Parent through it all, and work with a licensed and experienced Virginia custody attorney through it all, and you’ll be much better served. Is it easy? Of course not! But, over time, you can make a difference, and maybe even really impress your GAL to boot. For more information or to schedule an appointment with one of our attorneys, give our office a call at 757-425-5200.

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