The family law community should consider how they wish to define the role of the Guardian Ad Litem, and encourage judges to provide litigants – and GALs themselves – with more clarity.
By Joseph G. Stafford, Family Lawyer
The Guardian Ad Litem (“GAL”) as a child’s representative has been implemented for hundreds of years, with one of the earliest iterations of the position appearing in English law around the fourteenth century when an individual was appointed as the testamentary guardian for the child of a deceased father.
Over time, courts began appointing GALs in situations where the incompetent or child was a named party and:
- the presumed legal guardian had an interest which was adverse; or
- there was no presumed natural guardian.
While court appointment of a guardian in these instances is certainly a positive, the nebulous way in which GALs were appointed, and the general complexity surrounding the growth of the role, has caused contrasting definitions to be utilized which results in there being no clear standard for what a GAL actually is and should be doing, which is a disservice to litigants that causes confusion among even seasoned legal professionals.
As a result, defining the role of the GAL becomes an issue that we as attorneys must focus on remedying to bring about a better functioning legal system.
The Role of the Guardian Ad Litem
GALs commonly are defined in five different ways. The two most common are:
- as the child’s attorney, with the GAL being expected to zealously advocate for their client; and
- as an independent advocate for the minor, elder, or mentally incompetent individuals, with the definition of advocate varying wildly.
GALs can also be defined as:
- court-appointed investigators, tasked with evaluating the facts of the case and providing the court with a recommendation on what parent should receive custody;
- an actual party to the dissolution of marriage who acts in the best interests of the child, which differs from the GAL in the role of the child’s attorney;
- or as some sort of facilitator or mediator.
While these five definitions are common, it is important to note that guardians can perform some combination of the five different designations and can serve in other capacities such as expert witnesses. This list is not meant to be exhaustive, but rather it is meant to highlight the discrepancies and potential conflicts that can arise where there is no clear national definition of the role of the GAL.
A myriad of states such as Wyoming, Kentucky, Florida, Illinois, and Ohio have all attempted to rectify the problems caused as a result of the confusion surrounding the role of the GAL, and some of those solutions are good ones; however, they are ineffective at the state level.
While family law is generally a province left to the states, it is not unheard of for Congress to step in in order to clarify issues caused by a lack of state-to-state conformity. Laws like the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) and the Uniform Premarital Agreement Act (“UPAA”) are evidence that nationally suggested standards, in the case of the UPAA, or nationally mandated standards, in the case of the UCCJEA, can be effective in combating some of family law’s most difficult challenges.
The Role of the Guardian ad Litem Should be Standardized
While advancing a specific solution for the problem of the GAL’s confusing roles requires a more in-depth analysis than is possible in this article, Ohio and Illinois both have effective models if one so desires to embark on more research. Regardless, it is crucial that that solution, whatever it may be, is advanced nationally in order to protect litigants and individuals needing guardians due to the ever increasingly multi-jurisdictional legal world that we face.
As a result of the need for a clear standardization with respect to the role of the Guardian ad Litem in our legal system, it is imperative that members of the legal community, and the family law community, in particular, consider the ways in which they would want to define the role and to encourage both judges and legislatures to act in order to provide litigants, and GALs themselves, with some clarity.
Joseph G. Stafford, the managing partner of Stafford Law Co., L.P.A., has practiced family law for 36 years. A noted domestic relations trial and appellate lawyer, Joseph has lectured at various Continuing Legal Education programs on topics of family law and trial practice. Stafford Law Co. is one of the largest domestic relations practices in Northeast Ohio. www.StaffordLawCompany.com
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