Be Wary of “Saviors”: The Guardian ad Litem in Contested Custody Cases

Due to factors such as bias or inexperience, there is always a risk that a Guardian ad Litem will make recommendations that are not in a child’s best interest. Meanwhile, your client will have spent thousands of dollars on an investigation and report that could cost them custody of their beloved child.

By Rachel A. Elovitz, Family Lawyer

Seen through the eyes of the law, minor children are weak and deficient. They lack the maturity, life experience, and sound judgment that adults enjoy in making basic life decisions. This is why minors are legally unable to contract, marry, sue or be sued in their own name, and have no right to refuse medical or surgical treatment for their own bodies. The law presumes that a child’s parent is the fittest person to make decisions for the child – and that every parent has an avid affection for their child that can’t be doused by even the most ungrateful, impish, or rebellious child.

So, what happens when that innate affection, that intrinsic bond, takes a back seat to incapacity, abusive inclination, or neglect? In those instances, the state acts to protect the child – in part by appointing a Guardian ad Litem (GAL), who is charged with representing the child’s best interest. (In re W.L.H., supra.) This is a practice that has become widespread since the passage of the Child Abuse Prevention and Treatment Act (CAPTA) in 1974, the intent of which was to ensure that children in dependency (abuse and neglect) cases are adequately represented. Since CAPTA’s enactment, GAL appointments have been extended to contested custody cases, and GAL roles have become increasingly diverse, including those of fact investigator, mental health evaluator, next friend attorney, family mediator, and child attorney.

Guardian ad Litems are Valuable, Neutral, and Unbiased – Except When They Aren’t

Guardian ad Litem appointments are generally considered valuable – so much so that Palm Beach Post reporter Fran Hathaway once referred to GALs as “saviors” in an opinion piece entitled “Some Children Do Have Saviors” (June 9, 2002). GAL appointments, however, are complicated by conflicting ethical mandates, little statutory guidance, and ever-changing case law. The absence of uniformity in state-to-state guidelines regarding a GAL appointment, role, training, and compensation further confuses matters, resulting in a chaotic and inconsistent system.

Of the many roles in which a GAL can be tasked, the most common is that of investigator, which typically includes a review of the minor child’s records (e.g., academic, attendance, medical), meeting with the child, observing the child with each parent, and interviewing lay and expert witnesses familiar with the child and/or the parent-child relationship. The GAL then consolidates the information in a written report and submits it to the Court with custody and parenting time recommendations. When in this role, the GAL is viewed as an arm of the Court, gathering over the course of many months material information that the Court would not be able to glean in a few hours or days of trial. Without a GAL, a judge has no practical way to ensure, prior to determining what custody arrangement is in the child’s best interest, that all necessary information is brought before it “untainted by the parochial interests of the parents.” The GAL serves as the eyes and ears of the Court, her perceptions formed of fact, not fiction, and free from the stain of self-interest and bias – except when they’re not.

A GAL Must Establish Trust for Children to Express Their True Wishes and Concerns

Before drawing conclusions about a child’s best interest, a Guardian ad Litem should listen to and consider a child’s wishes and concerns, but doing so requires that a level of trust be established such that the child feels safe sharing. Establishing that trust can be difficult if a GAL only visits a child a couple of times, which is not uncommon, or if one or both parents instruct the child not to answer the GAL’s questions or coaches the child to say things that might not reflect how the child feels or what the child wants.

Children may also be concerned about speaking freely once made aware that communications with a GAL are not confidential. The risk is that the GAL’s report is quiet on the child’s wishes or concerns (if the child is reticent about sharing), or that the GAL report contains untruths (because the child is reporting what he or she was coached to say). A child’s reporting also can be influenced by parental alienation, situational anxiety, a desire to please, even domestic violence, and a GAL with insufficient training or little experience may not recognize that the child’s reporting has been so influenced.

A GAL’s Report Might be Fraught with Hearsay and False Statements

Also potentially problematic, courts tend to defer to a GAL’s findings, at times rubber stamping them, even when the case involves issues or allegations beyond the ken or expertise of the GAL (e.g., mental health issues, sexual abuse, substance abuse, physical violence) and even though a GAL’s recommendations are not a substitute for the court’s independent judgment.

GAL reports are also fraught with hearsay, statements made by persons outside of court and offered by the GAL in court for their (supposed) truth. Effectively, the Court is asked to assume that everyone the GAL interviewed was honest and their observations reliable, when neither the GAL nor the judge knows enough about the witnesses to make such an assumption.

It can be unbearable for a parent facing removal of a child, seeking reunification, or fighting for custody to listen as the GAL testifies about witness statements that are imprecise, mistaken, false, or even fabricated – particularly when there is no opportunity to cross-examine and knowing the statements might influence the Court’s decision. While hearsay is not admissible, absent objection, it may be allowed into evidence. A judge is presumed to be able to separate “the wheat from the chaff,” but once a judge has heard the “chaff,” it may be hard to unring that bell.

Finally, there is always a risk that a GAL’s perception of the facts will be contaminated by his or her own predispositions, that he or she will prejudge the case, engage in confirmation bias, or for some other reason make recommendations that are not in a child’s best interest, and your client will have spent thousands (if not tens of thousands) of dollars for an investigation and GAL report that could cost him or her custody of his or her much-loved child. So before you file that motion seeking a Guardian ad Litem appointment, make sure your client appreciates both the potential upside – and downside – of the motion being granted.

Rachel A. Elovitz has been practicing family law in Georgia for 24 years. She is an arbitrator and mediator, registered with the Georgia Office of Dispute Resolution, and she also serves as a GAL and Child Advocate. www.eofamilylaw.com

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