Guardian ad Litem: Everything You Need to Know

During a family law case involving children, the topic of whether a Guardian ad Litem should be involved frequently comes up as it is one way to help parties resolve disagreements, especially in high-conflict custody cases. 

A Guardian ad Litem (GAL) is an attorney or another speciality-trained professional, such as a therapist, who is appointed by the court to investigate the best interest of a child when parents disagree. After completing an investigation, the GAL will make a recommendation to the parties and the Court as to what the GAL believes would be in a child’s best interest. The GAL plays a powerful role in custody cases and so, before engaging in the process, it is imperative clients discuss the process with their counsel.

In today’s blog post, let’s take a closer look at the process of acquiring a Guardian ad Litem — and why it can be a “high risk, high reward” proposition.

There are two ways that a GAL can become a part of a custody case: The court may appoint the GAL on its own, or a party may ask the court to appoint one. Often when one party requests a GAL, the attorneys confer and select a GAL by consent. 

A GAL can be a high-risk, high-reward proposition. The GAL is the court’s appointed expert and judges often trust their experts. If the GAL ultimately agrees with a party, it can be a massive boost for settlement or going into court. If the GAL ultimately disagrees with a party, however, it can be challenging to overcome. Accordingly, the issue of using a GAL should be thoroughly discussed with experienced counsel.

If and when assigned, the GAL begins their own investigation outside the courtroom. Typically the process starts by asking each parent to complete a questionnaire. Then, the GAL will schedule an individual meeting with each parent, at which meeting that party’s attorney may or may not also attend. 

The GAL will review all evidence presented, including school and medical records, as well as speak with third-party witnesses. These witnesses may include neighborhood friends and families, church friends and families, teachers, coaches, babysitters, nannies, doctors, and other adults who regularly interact with the child and parents. Personal friends and family members are also invited to speak with the GAL. The GAL may speak with third-parties related to the parties, such as a parent’s individual therapist. The focus of these interviews is for the GAL to get a clearer picture of the child’s daily life, a child’s needs and wants, as well as each parent’s parenting abilities as observed by others.

The GAL also typically visits each parent’s house to gain a better understanding of the home environments, and how each parent interacts with the child. These visits are often scheduled, but sometimes on short notice if the GAL feels the timing would give a more authentic representation of the child’s life with that parent. The GAL may request to speak directly to a child, which often occurs in a comfortable, neutral location. A parent may request to be nearby if the child is young or has special needs, but the parents generally will not be able to listen to or participate in the conversation. 

How long does the process take? It depends on the facts and circumstances of each case. 

The length of time of a GAL’s investigation depends on the nature of the issues and the volume of the evidence to be reviewed. Occasionally GALs can offer feedback quickly, but in many cases it takes months for a GAL to complete an investigation and issue a recommendation. The timing depends entirely on the specific case and family.

Once the GAL has completed the investigation, they often schedule a time to issue a verbal recommendation to the attorneys regarding what they learned and what they believe is in the child’s best interest, including recommendations for custody and parenting time. Each parent’s attorney then fills their client in on these details.

Because judges so often agree with the GAL, cases usually settle quickly and/or are narrowed in issues following their recommendations. If the parents agree with the GAL’s recommendation, in whole or part, then parties (through their counsel) typically begin negotiating a settlement. 

If a parent disagrees with the recommendation of a GAL, however, the case typically proceeds to trial. If the case proceeds to trial, the GAL almost always testifies. Both attorneys, as well as the Court, can ask the GAL questions about their investigation and findings. If the GAL found in your favor, your attorney will ask them to testify about everything that led to their decision. If you want to challenge their recommendation, your attorney will object to the report, results, witnesses, biases, and other fact-specific items to highlight the deficiencies for the recommendation of the GAL and why it is not in the child’s best interest. 

It’s important to keep in mind the cost of the GAL. In most cases, both parties will pay a percentage of the fees for the GAL.

The total cost of the GAL depends on a number of factors, including the underlying issues, records and other factors, such as how many witnesses and interviews need to be conducted. 

The most common way for fees to be handled is for either one parent to pay all the costs up front, or for each parent to pay according to an agreed-to proportion. Frequently, parties also agree that–regardless of how the fees are divided during the case–the costs will be “subject to reallocation”. What that means is that, at the end of the case, a party can ask the Court to change the division/award reimbursements. This request for reallocation typically happens if a party believes the other side caused the GAL to incur significant fees, or where one side prevailed and felt some of the costs were unnecessary. At the end of the case, the Court may also reapportion fees on its own.

The Guardian ad Litem process is unique to family law cases and can be a tool to help resolve disagreements, especially in high-conflict custody cases. At the Fagan Law Group, we always encourage our clients to consider the risks and realities of their case before requesting the appointment of a GAL. It’s crucial that they provide a true outline of the facts — both good and bad — to their counsel before moving forward. 

If you have questions about appointing a Guardian ad Litem or other family law matters, the team at Fagan Law Group is more than happy to assist you through this process.

[Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. Every divorce case is very fact-specific and unique, and outcomes will vary based on individual circumstances.]