In the most amicable divorce, children can get caught in the middle. In a hotly contested divorce, or a split-up in which there are allegations of child or spousal abuse, drug or alcohol dependence, or where the spouses are just miles apart when it comes to custody and child care issues, it can be even worse. The family law judge, of course, has no interest in allowing the child or children to become caught up in the messy tug-of-war.
The court can employ a number of tools, including the appointment of a guardian ad litem (“GAL”) to represent the best interests of the child or children. The activity of a GAL can differ with the facts of a particular case, but generally, the GAL will investigate the parties’ parenting-related allegations and make recommendations to the family law judge, such as which spouse should receive primary care.
Function of the Guardian ad Litem
Some persons misunderstand the GAL’s function, based upon the law’s use of the term “guardian.” The GAL does not serve as the child’s caregiver or physical guardian. Instead, the GAL is the child’s voice in court. The GAL can interview various witnesses, including the spouses, and even the child or children themselves. The GAL can talk to neighbors and others to get a sense of the family’s life together. The GAL often interviews teachers and others within the child’s life to get a sense of the child’s needs. Recognize that the GAL is not searching for admissible evidence, but insight. At the end of the investigation, the GAL makes a report – and generally some sort of recommendation – to the court. Because the court views the GAL as an unbiased party, it often follows the recommendation of the GAL. However, it is not bound to do so and may make a ruling contrary to the GAL’s recommendation.
Factors Influencing Judge’s Decision to Appoint GAL
A number of factors go into a judge’s determination as to whether the appointment of a GAL is in order. Those factors include:
- Allegations of physical abuse, drug use, or alcohol misuse
- The need of the judge to gain perspective into each spouse’s view about the child’s future needs, particularly when those views seem far apart
- The desire on the part of the judge for someone to view multimedia evidence, such as audio and video recordings, before the beginning of any trial. Ordinarily, the court’s time is limited and the GAL is utilized to assess this evidence to determine its worth
Are There Drawbacks to Having a Guardian ad Litem?
The GAL process does not come without some potential negatives. A primary problem can be cost; GALs typically are paid hourly rates of $100 or more. GAL fees usually exceed $1,000 or more. The judge determines how those fees will be paid.
Most experts say the appointment of a GAL introduces an element of uncertainty into the case. Trained as they are to get behind the scenes, if a party has something to hide, he or she will likely do poorly with the GAL. Other issues to consider include:
- Non-attorney GALs can sometimes be influenced by matters that should not have legal consequence, such as the likeability of a party
- GALs may pay more attention to the “evidence” they have gathered than that which is actually before the court, since the GAL may have a tendency to view himself or herself as a true expert
- GALs may dig into the most personal and private areas of one’s life
Skilled, Experienced Legal Counsel is a Must
Anyone contemplating or going through a divorce needs legal counsel, someone to think and act dispassionately in times of great stress. Where children are involved, the stakes can be even higher. Blado Kiger Bolan, P.S. has more than 30 years of combined experience providing quality legal services to individuals throughout the Pacific Northwest. We have helped both husbands and wives in divorce proceedings. We’ve helped work out appropriate arrangements for custody and child support. Our firm handles cases in a collaborative environment – attorneys working together to find solutions. You benefit from the experience of not just one attorney, but all the attorneys at Blado Kiger Bolan. We don’t believe in complicating matters and driving up costs. If there’s a simple solution, that’s our first choice. We work closely with you to resolve matters quickly and economically. Contact us on the web, or call our office at 253-272-2997.