Understanding the Role of the Guardian Ad Litem in Family Court

In virtually any family court matter involving minor children, there is eventually a Guardian Ad Litem involved. Establishing a good relationship with the Guardian Ad Litem can be crucial to getting the outcomes you want, and avoiding major problems down the road. Put plainly, the Guardian Ad Litem opinion is often the most important one in a family court case involving minor children.

A Guardian Ad Litem is an attorney, appointed by the Court to advocate for the ‘best interests’ of the minor child(ren). The Guardian Ad Litem has a client: the kids. The Guardian Ad Litem can act like any other lawyer in court, as well, calling witnesses, cross-examining witnesses, submitting evidence, and making requests of the Court.

Divorces and other situations where two parents used to live together and don’t anymore can get difficult, and oftentimes parents who think they can agree on everything without involving the Court system ultimately cannot. This is especially true when the issues involve minor children. If there is a disagreement over ‘Custody’ (major life decisions, like school, religion, and medical care) or ‘Placement’ (where the kids physically are at any given time), the Court will almost always appoint a Guardian Ad Litem. This can happen when one or both parents request(s) it, or when the Court decides on its own. But if there is a disagreement about kids, a Guardian Ad Litem is a near certainty.

This is often uncomfortable for the parents but, since the Guardian Ad Litem is there to advocate for the best interests of the children, the Guardian Ad Litem talks to the children. The Guardian Ad Litem will coordinate that with one or both parents, but often the meeting(s) between the Guardian Ad Litem and the children happen without either parent present – especially if the children are old enough to advocate for themselves. The Guardian Ad Litem will also often talk to teachers, therapists, and other family members. Then, the Guardian Ad Litem will formulate a ‘recommendation’ for the Court as to what should happen concerning the issues in dispute.

More often than not, the Guardian Ad Litem’s recommendation is what the Court approves. This can, and often does, happen even when both parents disagree with the Guardian Ad Litem. It can also happen when the kids themselves do not necessarily agree. It can be very difficult for a Court to rule on disputed issues of custody and/or placement. When there is a lawyer who knows the kids, and is not biased toward either parent, and is recommending what the Court should decide, that typically goes a very long way.

Contested custody and placement cases are often very emotional, and each parent usually feels like they know what is best for the children. Having an outsider come in and suggest something else can be very difficult. But it is extremely important that a parent maintain a good relationship with the Guardian Ad Litem. A parent’s attorney can and almost always does talk to the Guardian Ad Litem and advance their client’s arguments, but ultimately there will be times when the Guardian Ad Litem and the parents interact directly. If the Guardian Ad Litem concludes that one parent is especially difficult or unreasonable, that will often factor into their recommendation, and not in a good way for the parent in question. Parents should understand that the Guardian Ad Litem is usually highly respected by the Court (after all, they’ve been appointed in the first place), and that upsetting the Guardian Ad Litem is almost as bad as upsetting the Court itself.

The parents do—which is also often hard to accept. Why should a parent have to pay for a lawyer they might not have even asked for, who then gives recommendations they don’t like? But that is how it goes. And a parent should keep that in mind while any disagreements are still young: the less the two parents can agree, the more expensive it gets, and the less control the parents themselves have.

Yes. Again, Guardians Ad Litem are lawyers too, and are part of the same legal community. A knowledgeable lawyer can communicate with the Guardian Ad Litem professionally and effectively, and usually free of emotion. A lawyer can also point out legal issues that the Guardian Ad Litem should consider when formulating a recommendation. Once a case is far enough along to be in contested court, it’s good to have a lawyer anyway, but it’s even more important once a Guardian Ad Litem is involved.

If you are going through or thinking about a divorce and have minor children, please contact us to set a time to discuss at your earliest convenience to discuss your rights and possible representation.