Working with a Virginia Guardian ad Litem

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.

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.