Monday, February 10, 2014

Custody: Do you understand the role of the guardian ad litem (GAL)?

Custody cases can be complex, emotional and just plain difficult for a lot of people.  Aside from the emotions and practical challenges of dealing with a court case, you have to figure out who is who and what their role is.

Guardians ad litem are appointed in a lot of custody cases, especially those where the mom and dad are unrepresented and do not have an attorney.  If you have an attorney, your attorney should explain the role of the guardian ad litem.  If you do not have an attorney, the guardian ad litem should explain his/her role.  However, things that should be done are not always done and sometimes there is just a disconnect between one person's explanation and the other person's understanding.

Here's a brief overview of the role of the guardian ad litem, or GAL, in custody cases. 

The GAL represents the child in the case.  This is a very similar relationship that you, as an adult, would have with an attorney.  The GAL's role, however, is slightly different, in that sense.  When you are represented by an attorney, with some limitations, that attorney MUST do what you want him to do.  He MUST advocate for what you want.  A GAL, on the other hand, does an independent analysis of what is in the best interests of the child.  The GAL MUST advocate for the best interests of the child, even if the child says he wants something different.  Similarly, when you are represented by an attorney, again with few limitations, any communication between you and that attorney MUST remain confidential.  A GAL, however, may disclose those confidential communications if he finds it is in the best interests of the child.  For example, if the child says, "don't tell anyone but my mom/dad/brother hurts me", it is likely in the best interests of the child that the GAL alert appropriate parties and obtain help for the child.

Another aspect of the GAL's role is to provide a recommendation to the judge on how he/she should rule.  This recommendation is formed after a thorough independent investigation and review of the case.  A judge can only consider the evidence before the court (which does not include things such as hearsay).  The GAL, however, may consider all information obtained in his/her investigation.  The Court is not required to follow the GAL's recommendation, but many times the Court puts significant weight on the GAL's recommendation.

Finally, it is the role of the GAL to explain the court proceedings to the child.  The GAL should talk with the child before court and explain the roles of each party, what the court proceedings will be like, etc.  This explanation will vary greatly depending on the age, maturity and education level of the child.  An important duty involved in this role is to talk with the child after the conclusion of the case and explain to the child what the outcome of the case is: is he now going to be living with mom, will he see dad every weekend instead of every other weekend, etc.

This is a brief overview of the role of the GAL.  The specifics of how a GAL carries out his responsibilities and duties depends, in large part, on the specific circumstances of the case.  If you are involved in a custody case and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.