On occasion, disputes occur between divorcing parents concerning
the care of their children. When they do, the court may appoint an
attorney to serve as a Guardian Ad Litem. Unlike an attorney who
advocates a client’s position, the Guardian Ad Litem is required
to investigate the issues identified by the court, determine what
is in the best interest of the child, and make recommendations
based upon the facts gathered during the investigation. This
determination could be different from what the child would like
to see happen and as a result, the Guardian Ad Litem may make a
recommendation contrary to the expressed wish of the child.
The Guardian Ad Litem should carefully review all pleadings
related to the case prior to meeting with the parties. Additionally,
it is helpful for the Guardian Ad Litem to seek, in written form, an
outline of the parties’ positions regarding the issues. This outline
may be drawn up by the attorney representing the party, or by the
parent if they do not have an attorney. Once this initial information
is obtained, the Guardian Ad Litem should meet with the parties
individually to discuss their position as well as concerns not
addressed in the written summations.
A Guardian Ad Litem may also seek information from collateral
sources such as school teachers, relatives, neighbors, and treatment
providers. Special care must be used in cases where a Guardian
Ad Litem seeks to obtain information from a child’s therapist.
Generally speaking, conversations between a child and his or her
therapist are confidential and can not be revealed by the therapist
without the child’s permission. Therefore, a limited purpose
Guardian Ad Litem may be appointed to decide if the child’s
privilege should be waived or asserted. Only if a privilege is waived
may a Guardian Ad Litem speak with the child’s therapist.
The Guardian Ad Litem must decide the appropriateness of
interviewing the child. When it is determined that an interview
is appropriate, it should be conducted face to face in a setting
comfortable for the child. It may be appropriate on occasion for
the Guardian Ad Litem to ask a child specifically for their opinion on issues before the court. Care must be taken to avoid placing the
child “in the middle” of the dispute. Careful consideration must be
given to the motivation behind the opinion expressed by the child,
including whether it is being given in an effort to ease parental
conflict.
Once the Guardian Ad Litem completes the investigation, a written
report is submitted to the court and is available to the attorneys
and their clients to review. Often, the report and recommendations
serve as a catalyst toward resolution of the issues. However, if the
parties are unable to reach an agreement, the matter will most likely
go to trial. At trial, a Guardian Ad Litem may testify regarding his
or her investigation and the recommendations made. Although the
court may consider the Guardian Ad Litem’s recommendations,
there is no requirement to do so. In fact, the court is required to
make a determination based on all evidence presented during the
trial and not solely on the recommendations of the Guardian Ad
Litem.
A thoughtful Guardian Ad Litem investigation can help a judge
make informed decisions about the care of children in disputed
domestic relations cases. Like all domestic relations cases, the skill
of the Guardian Ad Litem involved is crucial in ensuring that the
issues before the court are thoroughly and thoughtfully addressed.