How to Understand the Role of the Guardian ad Litem in a Divorce or Custody Case

In divorce cases where custody is an issue, sometimes a Family Court judge will appoint a Guardian ad Litem to act on the child's behalf. "Sometimes" is the key word, because the appointment is not mandatory in many states. For example, in New York, the Guardian, who is referred to as the Attorney for the Child, will usually be appointed if the judge sees that the case will not settle easily without one or if the parties are extremely hostile towards each other. This is when the Guardian or Attorney for the child will be especially useful in helping to resolve issues. There are some common myths about a Guardian ad Litem, some of which will be dissected and dispelled here.

Can the Guardian ad Litem Take a Position?

In most jurisdictions, the Guardian ad Litem commences the case with a position of neutrality--that is, without any preconceived notions about either parent and without any theory about where the child should live. If the Guardian ad Litem enters the case and is already prejudiced against either party, that party should make a motion, which may or may not be oral depending on the jurisdiction, to dismiss the Guardian. Most Guardians, however, are indeed neutral at the outset of the case. They took training courses to become Guardians ad Litem and understand their ethical role in custody cases.

This is not to say that the Guardian can never take a position. In many jurisdictions, after the Guardian has interviewed the child and other collateral sources such as friends, teachers, doctors and relatives, the Guardian may indeed adopt a position. In New York, the Attorney for the Child may take a position and abandon her position of neutrality after she has been involved in the case, has interviewed significant people, and has a firm grasp of the issues. The parents, at that point, will generally not succeed in claiming that the Attorney is biased, since taking a position after a reasonable period of time is expected. The Attorney for the Child is the third lawyer in the case and must defend the child vigorously, being guided by what is in the best interests of the child.

In some states, such as Maine, Guardians ad Litem actually render a report after interviewing the aforementioned people. Obviously at the time the Guardian is ready to prepare the report, that Guardian has taken a position about where the child should live. In many states, claiming that a Guardian ad Litem is biased against a party will not succeed without solid proof that such is the case. It is not enough that the parent does not like the Guardian's position--generally speaking, the parent has to prove actual bias existed from the outset or near the outset of the case.

Is a Recommendation Permitted and What is it Based Upon?

The answer to this question depends on the state where the case is being heard. In New York, Attorneys for the Child used to make recommendations to the judges, and it was up to the judge to either follow or override it. Now, in New York, Attorneys for the Child are not supposed to make recommendations but are involved in the case to advocate for and protect the rights of the child. The Attorney for the Child in New York is now supposed to have no more input than the other attorneys in the case as to where the child should live. In other states, however, recommendations are not only permitted but they are required. In Maine, for example, a Guardian ad Litem is expected to produce a report with a recommendation. The difference here is that in New York, the child is the Guardian's client, while in Maine, the court is the Guardian's client. The Guardian ad Litem is performing a service for the court in Maine and in other similar jurisdictions, making their input crucial.

Cooperating with the Guardian ad Litem--Is it Necessary?

Whether the Guardian ad Litem in your state is only the third attorney in the case or is delivering a report and recommendation to the court, it is definitely in your best interest, and ultimately your child's, to cooperate with the Guardian. That doesn't mean you have to like him, but the worst thing to do is take out your frustrations with the court system on him. He is doing his job to protect the child, and he is not there to please either parent. Accordingly, it is helpful to provide the Guardian with a list of people to interview, such as doctors, teachers, friends and family members. These are people who know your child very well and can add information that the Guardian might not get elsewhere. It is also important to meet with the Guardian if he wants to schedule an appointment, and if he wants to meet with the child alone, it is in your best interest to let him do that. After all, in many states, your child is his client, and he is entitled to speak with the child alone. Even if the court is the Guardian's client, the Guardian is still required to speak with the child. It makes no sense to make it difficult for the Guardian to speak with your child--he may sense that something is wrong and it could end up hurting you in court.

Isn't the Mother Always the Preferred Parent?

This myth is not true. While in many states that used to be the case, most states have laws that there can be no preference for one parent over the other. In other words, they have removed the language that the preferred parent is the mother. Many states are more progressive these days and realize that awarding custody to a father can be an excellent decision.

These explanations should help you navigate your way through your divorce or custody case with the Guardian ad Litem.