Nothing strikes fear in the mind and soul of a mom more than the threat of a custody case – especially when dad is unreasonable, unwilling to compromise, or somehow an inappropriate caregiver.
It happens a lot. Even dads who were never formerly involved – or who did some terrible things – can petition the court for custody and visitation. Dads can even petition the court for visitation of a child who is a breastfeeding infant. Really, any dad, at any time, in any set of circumstances, can petition the court for custody and visitation.
That’s…kind of how the system works. After all, it’s not like you have the final say in what happens. It’s not like he does, either, of course. But in cases where mom and dad clash, Virginia law says that the court can make a decision. The court uses the best interests of the child factors to determine what kind of custody and visitation arrangement is most appropriate, and in July 2018 the law also changed to say that the judge must equally consider all types of physical custodial arrangements (primary, shared, and split physical custody, specifically) equally.
So, what does that mean? How do courts decide custody and visitation?
Well, it really does all come down to the best interests of the child, like I mentioned above.
It’s a pretty complex weighing of factors, and the facts and circumstances in each case present a little bit differently. Though I’ve had plenty of custody cases with similar attributes (like, say, a relocation), the facts are always different and somewhat unique. No two custody cases feel exactly alike and, as such, it makes sense that in each case different issues would take center stage.
In a custody case, typically each parent has an attorney. That attorney presents their case, pokes holes in the other party’s case, and generally does everything he or she can to describe a parenting arrangement that he or she believes is in a child’s best interests.
Children – by definition – are minors. They don’t typically go out and hire their own attorneys, the occasional Jodi Picolt bestseller notwithstanding. Mostly, children are left out of the entire process, and mom and dad’s lawyers are the ones making all the racket.
That’s why, in many of these cases, a Guardian ad litem is appointed to represent the interests of the children to the court. A Guardian ad litem (or GAL, as we often call them) is an attorney appointed to represent child. Just like your attorney can conduct discovery, hold depositions, introduce evidence, question witnesses, and make opening and closing statements, so too can the Guardian ad litem. He or she is an attorney – just one who happens to be representing a party who (almost certainly, at least) isn’t present.
What kinds of attorneys become Guardians ad litem?
Lots of attorneys become Guardians ad litem. Like every other kind of attorney, there are good Guardians ad litem and bad Guardians ad litem. That should probably come as no surprise.
But Guardians ad litem aren’t therapists or experts in child development, though they do receive special training (and continue to receive special training for so long as they maintain their status as Guardians ad litem). They have standards to govern their conduct which set forth specific things that a Guardian ad litem is supposed to do– for example, talk with the child, conduct home visits, and so on.
Can we choose our Guardian ad litem?
Sometimes! Sometimes they are court appointed, but if your attorney and your child’s father’s attorney agree on a person to serve as Guardian ad litem, the judge will often honor that specific request. Attorneys do often choose to select their own Guardians, if only to avoid getting someone they don’t know and who may or may not do a good job.
We’ve almost all had horror stories with Guardians ad litem who are difficult to reach and don’t do their work until the 99th hour – or even at all. But, still, removing a Guardian ad litem is virtually impossible, and virtually suicidal to attempt. (After all, do you REALLY want a Guardian ad litem that you’ve tried to remove – especially if all or part of your argument has to do with telling a judge that he or she didn’t do her job? – making a recommendation about whether or not you should have custody of your child? Didn’t think so.)
It’s almost always best to try to work with your attorney and your child’s father’s attorney to select someone who does a good job. You probably won’t like him or her very much, anyway, but that’s part of the job. One of our attorneys, Caitlin Walters, worked as a Guardian ad litem in her former life, and she always said that she wanted to make sure both parents didn’t like her to avoid any allegations that she showed favoritism to one side or the other. Still, anxious, worried parents say that all the time. They even analyze how much time the Guardian spends talking to dad versus mom, or whatever. It’s not easy to like someone with so much power over your ultimate outcome, is it? Especially when it almost always seems like the Guardian ad litem is a bit of a wildcard.
How do I know what the Guardian ad litem will say?
One of the Guardian’s responsibilities is preparing a report prior to the final hearing is issuing a final report.
Until we get that report, which is often on the eve of trial, we don’t know exactly what he or she will recommend.
And it’s powerful – in a lot of cases, judges rely heavily on Guardians ad litem to help them make decisions. After all, the judge only has an hour or two, tops, with all the parties – and can’t really perform home evaluations, talk to teachers or therapists, or even speak candidly with the child. The judge is often the person in the room who knows the least about the case, and it’s difficult for them to rule on custody and visitation without the Guardian ad litem’s perspective.
That’s not to say that the judge always sides with the Guardian. But Guardians ARE very well respected, and very important contributors in these custody cases. So you should take your Guardian, if one is appointed, very seriously.
Who pays for this third attorney?
You do! You and your husband share the cost. It’s one of the many, many reasons that custody cases are expensive. There are a lot of variables you can’t control, and whether or not a Guardian ad litem is appointed is one of them.
Judges – I think, anyway – prefer Guardians to be appointed, especially in cases where there are complex issues. I actually prefer a Guardian to be appointed in many cases, mostly because I feel like my client is generally a better caregiver than the child’s father is! I do, though, try to ensure that I can have at least a little bit of say in who is appointed, especially since there’s a whole host of Guardians who don’t do the world’s most stellar job.
Cases in the juvenile court are a little more flexible with payment plans than in the circuit court, but, still – it’s a third attorney that you’ll have to pay for, if one is appointed.
Guardians ad litem are important contributors in a custody case, and you’d be wise to take the Guardian’s role seriously. For more information, request a free copy of our custody book, read one of our free reports (there are a couple on GALs specifically that you’ll want to check out), or set up an appointment to talk to one of our licensed and experienced Virginia divorce and custody attorneys by calling our office at 757-425-5200.