by Jonathan M. Barlow

Though I’ve been gone for a couple of weeks, I’ve returned to once again provide sound – and not legally binding – advice as it relates to a contentious custody dispute. Most of the people that I represent or advise have never heard of a guardian ad litem, or GAL for short, and find themselves worrying over the addition of an extra party to their already hostile case. In the following paragraphs I will do my best to explain the pivotal role of a GAL in a custody dispute to try and alleviate some of that worry, should you find yourself in this scenario. As usual, if you don’t have kids you won’t have a GAL, but you could provide this piece to someone that you know is going through such a battle. As someone that has worked as a GAL on a number of cases, I can appreciate their entry into a contentious battle, and you should too. I note here that GALs DO NOT have your best interest at heart, but rather your child’s, which makes them extremely important.

Many individuals that find themselves in the throes of custody litigation get their first introduction to some guardian ad litem, a fancy name for an attorney that is ordered by the Court to conduct an investigation into the custody battle, after one of the first hearings is had, usually known as a “temporary” hearing, while the entire case is worked through until the final hearing. A GAL is an impartial party that works for the Court, at the order of the judge by virtue of one side’s petition, or by the judge at his or her own discretion. The main role of a guardian ad litem is to conduct the aforementioned investigation and then provide the parties, attorneys, and the Court with a written report that indicates which party is best suited to have custody of the minor child or children. Though this idea initially invokes fear in many clients, with rapid questions like, “what if this GAL just doesn’t like me,” or some inquisition into why we even need a GAL, they are a pivotal part of the case because the GAL is doing the actual work that will determine custody. The judge has no time to meet with everyone, and each attorney is inherently biased to their party’s story. As such, enter the wonderful, and often overworked, guardian ad litem.

GAL’s don’t have absolute discretion to just pick and choose where the subject minor child(ren) will live. In fact, GALs are bound by an early 1990s case, Albright v. Albright (to be discussed at a later date) which postulated a number of factors (13) that the Court, and more importantly the GAL, must consider when awarding custody. Typically, a GAL will reach his or her decision by putting boots on the ground and an ear to a phone.

A GAL will meet with parents, relatives, schools (if applicable), review medical and community records, and consider factors such as health, age of the parties and children, and income, education and so forth in making their decision. Though these factors may seem random now, but they come from that aforementioned case. Once a GAL has conducted their investigation, they begin writing up their report. When the report is finalized, the GAL will provide said report to all of the persons involved in the case. However, their work is not done; the GAL must then come to Court to testify as to their findings, and provide the Judge with their final decision. Typically speaking, what the GAL says goes. However, if you and your attorney feel that the GAL did not adequately perform their job, you can try to poke holes in their findings to overcome what they’ve decided, if it so happens to go against you. The Court will then make his or her decision based on the GAL report, and any and all testimony elicited at trial. Generally speaking, the parties will each provide half of the costs associated with a GAL (of course they don’t work for free.)

Though brief, I hope this article offers you a simple and to the point explanation into the role of a GAL, why they are ordered, and what they do. Guardian ad litems are ordered by the court with only one concern in mind; what’s best for your child.