I’ve written before about the role of a Guardian ad Litem (GAL). I want to focus in this post on some of the reasons you might consider seeking appointment of a GAL for your case, and the process for getting a GAL. I’ll use the terms Guardian, Guardian ad Litem and GAL interchangeably here.
Your attorney and the other parent’s attorney (or you and the other parent if you’re both unrepresented) can agree on an agreed order appointing a Guardian ad Litem for your time-sharing case, and send the order to the Judge for his or her signature. There are procedures you’ll need to follow if you’re doing this on your own – you can consult with an attorney, and there are usually case managers assigned to give some direction to clients who are representing themselves. If both sides don’t agree to appointment of a GAL, one parent/attorney can file a motion for appointment of a Guardian ad Litem, and have the motion heard and decided by the Court. Sometimes, there can be agreement on having a GAL appointed but not who to select, and the parties can submit an agreed order to the Judge for appointment of a Guardian, but leave a blank in the order for the Judge to select which GAL to appoint. The Judge might want to see both parties or attorneys in court to hear from both sides, before appointing the Guardian.
The order should specify what portion of the GAL’s fees each party will pay. A GAL for the case can be expensive — the Guardian will need to talk with both parents, both attorneys, the child(ren) and other important witnesses in the case. If there are counselors or psychologists involved the Guardian will review any reports they’ve written, and usually make arrangements to talk with them as well.
There are a few significant reasons to consider having a GAL appointed for your case. If what you’re asking for is the right thing for the children, a third party like a Guardian ad Litem should see that also and agree with you. The GAL is a trusted third party who will investigate the case and report back to the Judge, and Judges very often if not always place great weight on the report and recommendations of the Guardian ad Litem.
If the other parent is asking for something that is unreasonable and not best for the children, the Guardian ad Litem should see that as well, and be able to report back to the Judge. In that sense, the other parent would be worried about what the GAL might have to say, and the appointment or possibility of an appointment sometimes can lead one or both parents to make better attempts to resolve the case. It’s possible that in some cases what’s best for the child is not clear; or one or both parents may be so dug into their position, far apart in their sense of what’s best for the child(ren), or willing to indulge in a fight with the other parent, that the litigation and conflict proceed undiminished after appointment of the Guardian.
There are some potential risks for you in appointment of a GAL. The issues in the case may be close, and the Guardian, for whatever reason, ends up recommending against you. It’s always possible that you could have a personal conflict with the Guardian. Whether it’s your attorney or the Judge who is selecting the GAL, it’s likely they’re choosing someone whom they’re comfortable with and believe will conduct themselves professionally and act in the best interest of the child(ren), which to some degree reduces the risk you’ll have a guardian who won’t be able to see past personal conflicts. Some of this will be on you also; if you somehow develop a conflict with the Guardian ad Litem you should talk with your attorney if you have one for advice, and try to fix the conflict. A GAL is often reserved for cases where there are significant problems or conflicts, and some of what is going on may relate to how you are handling things. It’s not so much a question of attributing fault, but to seeing and having insight into what is going on. There is a saying that criminal law attorneys see people who have done wrong at their best, and family law attorneys see good people at their worst – it’s worth considering how you can approach things differently if you run into difficulties with an appointed GAL. (I imagine clients — and sometimes Judges, might think some version of the above adage applies at times to family law attorneys as well).
If the Guardian is reaching conclusions that are not supported or not treating your fairly, your attorney can assist you. Your attorney can cross examine the GAL in Court, and offer opposing testimony from you or other witnesses or experts. The Judge will tend to trust the Guardian he or she has appointed, but it comes down to the same factors as in any case – the Judge weighing the credibility of the witnesses and the facts presented.