The Role Of The Guardian Ad Litem Icustody Litigation

Professor Kane

Family Law

The Role of the Guardian Ad Litem in Custody Litigation

The topic I chose to write my paper about is the role of the Guardian Ad Litem (GAL) in custody litigation. There are many flaws and inconsistencies in the adequacy and standards of the Guardian Ad Litem system. In my opinion, the system seems unfair and unjust. As a result, the outcome of this can wreak havoc on one's family, especially the child and deeply affect the rest of their lives. I have witnessed the results of this first hand, because my dear friend is an unfortunate victim of the GAL system, which destroyed her life. Therefore, there needs to be stricter guidelines and policies for GAL's to follow when determining all custody dispute cases.

Originally, In the United States, English Common law's main reasons for appointing a GAL in a court proceeding was to represent individuals who were considered incapable of protecting their own interests or to protect the financial interests of children. Traditionally, such individuals were appointed a representative - usually a lawyer - to advocate on their behalf in all judicial proceedings.

(http://www.govoepp.state.sc.us/children/galhist.htm)

On January 13, 1974, Congress passed the Child Abuse and Treatment Act, which required states to appoint a Guardian Ad Litem in all abuse and neglect proceedings in order to receive federal funding and assistance.

Furthermore, because of the Child Abuse and Treatment Act, South Carolina passed the Child Protection Act and the state of Washington started experimenting with the use of volunteers as court appointed Guardian ad litem in order to obtain complete information on the case. This experiment was so successful that the National Council of Juvenile and Family Court judges endorsed it. As a result, other programs were developed across the country that similarly began using volunteers as advocates for children in court.

Clearly, the purpose of assigning GAL's has expanded over time. Today the majority of states appoint guardian ad litem solely to protect the safety and welfare of the child.

The legal definition of a Guardian ad Litem is a person who is appointed by the court to represent and protect the best interests of a child during a lawsuit. For example, a Guardian Ad Litem may be appointed to represent the best interest of a child in a divorce case where both parents are battling over the welfare and custody of the child or to protect the child when there is an allegation of child abuse.

Many people wonder why any court would think that the parties (usually parents of the child) would not have the concerns of the child in mind. However, in many cases, the parties to the case are so wrapped up in his/her own problems or needs that they fail to see the situation from the perspective of the child and most importantly do not realize the devastating impact that the divorce has on the child. The court appoints the guardian so that he/she does not owe any allegiance to either party. They can be objective in the investigation and recommendation as to what disposition would be in the best interests of the child(ren).

Guardian Ad Litems do not necessarily have to be lawyers. They represent a variety of professions ranging from social workers to mental health professionals to volunteers and vary according to each state statute. For example, in the state of Dakota you must be a lawyer to serve as a Guardian Ad Litem. Yet, in Massachusetts this is not the case.

A guardian is empowered to investigate the entire background, living conditions, family relationships, and any other matter related thereto in order to make a recommendation to the court as to what would be in the best interests of the child as to placement, visitation, and other matters ruled upon by the court. They can make home visits, speak with anyone in person, by phone, or any other method of communication. They can also, with the courts help, subpoena witnesses to testify and to appear in court. The guardian usually makes a report to the court recommending a specific outcome. The parties do not have to accept the report, but can present their own witnesses and evidence in court. The Judge makes the final determination on the disposition of the child(ren). However, the report of the guardian, if presented properly to the parties prior to trial, can sometimes lead to settlement of the issues without the expense of a trial.

A GAL's overall duty is to protect and promote the child's best interests. He or she is responsible for

Ð'* investigating to determine the facts, the child's needs, and resources available in the family and community;

Ð'* recommending services and interventions that would ensure the child's safety and that children who have been removed from their homes will be in a permanent home as soon as possible; and

Ð'* offering evidence and examining witnesses in court (Mason, 1996).

Within these broad functions GALs have a lot of latitude with regard to how they gather information. Some spend a lot of time talking with foster parents, foster children, teachers, etc., while others find out what they need to know without so much personal contact. Some want to be a part of the child's life, others see their role as that of an objective third party who monitors the provision of services to the child.

That said, in the pursuit of their duties most GALs will probably

Ð'* visit the child;

Ð'* ensure the child's wishes are known to the court;

Ð'* interview parents, guardians, foster parents, or other caretakers;

Ð'* interview the social worker and other service providers and review records related to the family;

Ð'* seek cooperative solutions with other participants in the child's case;

Ð'* prepare written reports for court hearings;

Ð'* attend and participate in court hearings and other related meetings;

Ð'* testify,