In any family law case, be it dissolution of marriage, paternity, modification of a prior case, or protection order case, if any party alleges the abuse or neglect of a child, the court is required to appoint a guardian ad litem (GAL), an attorney to represent solely the interests of the child or children, separate and apart from the attorneys representing the parents or guardians.
The typical order appointing a GAL in such a case covers a lot of territory.
The GAL’s fees are to be paid by the parties, and typically the mother and the father are each ordered to deposit an initial sum for the GAL’s fees to be incurred. As time goes on in the case, and fees mount, additional payments may also be ordered to be paid.
The GAL is to have unfettered access to the children, and the parents are to permit this. The relationship between the GAL and the children shall be treated as attorney-client, and their communications confidential and privileged.
The order also directs all school personnel, law enforcement agencies and medical, dental and mental health providers to cooperate with the GAL and provide information and documentation upon request. This includes school records, grade information, medical and dental records, counseling and therapy records, and anything else maintained by these parties, the idea being that the GAL, as the attorney for the children, needs to find out everything about their lives, issues, and well-being to see that their interests are represented and protected in the case.
The GAL also functions like the other attorneys in the case. They appear at all court hearings, and participate in depositions and the trial of the case.
Regarding issues involving the children, like restrictions on contact, custody, and visitation, the GAL usually makes recommendations to the court, which judges usually follow. Having a good GAL, who does not represent either of the warring parties, provides the court with a largely independent and neutral party to rely on in its decision-making.
Some lawyers, I believe, are quick to make an allegation that could be construed as alleged neglect or abuse of a child because they may view the appointment of a GAL as a tactical advantage in a custody dispute.
I’ve also known judges who disdain frivolous and far-reaching allegations of abuse or neglect so that a GAL may be appointed, which the party alleging abuse or neglect may believe will benefit them, especially if a GAL with whom they may hold a favorable relationship is appointed. One reason is that contested litigation between parents over kids is expensive enough without the parents having to add the expense of splitting the cost of a third attorney to the mix. That definitely favors the party with more money, sometimes unfairly so.
I will say, however, that the GAL’s I have worked with, almost without exception, have taken their duties to the children to whom they are appointed very very seriously, and have seen fit to observe their role without regard to personal relationships they may have with the attorneys.
All in all, it makes sense in many cases that the interests of the children be separately represented, particularly where parents are fighting over them. That’s when a GAL often comes into play.
Ken Garten is a Blue Springs attorney. Email him at firstname.lastname@example.org.