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What is a Guardian Ad Litem and How Do I Know if I Need One for My Divorce Case?

What is a Guardian Ad Litem? A Guardian Ad Litem or a GAL for short, is a neutral attorney that is appointed by the Court in a divorce case to be the “eyes and ears of the Court” and investigate the best interests of the children. There are numerous factors the Court must consider under the law to determine what is in the best interest of the child, and the GAL assists the Court in gathering information in support of these factors.

What does a Guardian Ad Litem do? Once appointed, A GAL is tasked with investigating facts that are in favor, or not in favor of the best interests of the children.  The GAL beings their investigation by first reviewing the order appointing them and reading the pleadings (legal documents) that have been filed by either party noting areas of concern any party has raised, and identifying issues they might have initial concerns about.  Then the GAL will reach out to either parent and interview them independently. The GAL asks the parents to provide the names and contact information for any witnesses that might support that parent’s arguments. The GAL interviews teachers, healthcare providers or other people involved in the children’s life, and then often schedules a time to conduct a home inspection of each parents’ residence.  The GAL may then interview the children themselves depending upon their age and health. With that information gathered, the GAL will then issue either a verbal or written report of their findings to the Court so that the Court can take it into consideration in deciding what is in the children’s best interests.

What facts are important to a GAL? GAL’s are concerned with facts that help them understand what sort of recommendations for parenting time and decision-making authority are in the children’s best interests. GAL’s often take into account things such as: what potential school district the children will be attending? What is each parent’s residence like? How many bedrooms does it have? If childcare is necessary, what is each parents’ plan for childcare? How is each parent likely to foster the children’s relationship to the other parent?

How do I get a GAL on my case? GAL’s often enter a case based upon one, or both parties filing a Motion with the Court asking that a Guardian Ad Litem be appointed. Occasionally, a GAL will be appointed solely on the Judge’s discretion, even if neither side has requested one.

How do I know if I need a GAL? The best way is to consult with your experienced divorce attorney and mention to them that you think it might be needed on your case. But, as a general rule, GAL’s are necessary when one party believes the other party is a danger to the children or awarding that party parenting time would place the children in danger. Under what type of circumstances should I consider asking my attorney to file a motion to appoint a GAL? Typically, when there are issues of substance abuse, questions about mental health, or concerns over possible living standards for the children, it is appropriate to ask for a GAL.

When is it not appropriate to ask for a GAL? It is not appropriate to ask for a GAL unless you have a good faith basis to fear for the health or safety of your children. A GAL should not be employed when you simply do not like your child’s other parent anymore, or you simply disagree with the other parent’s proposal for a parenting plan or the judge’s pre-trial conference recommendations. Are there fees for a GAL? Except for in the rare cases where the Judge appoints a GAL pro bono, yes, there is a fee for the GAL. Most often the Court assigns a retainer and hourly rate for the GAL. Both parties are usually responsible for paying GAL fees. Although, the percentage of the fee each side pays can vary depending upon the financial circumstances of each party, and sometimes also based on the reason a GAL was appointed.

I don’t want a GAL, but my child’s other parent does, how can I stop the other parent from getting a GAL appointed? The simple answer is you may not be able to. Unfortunately, just because you do not want one appointed, does not mean the Court will not go ahead and appoint a GAL.  The Court always has the discretion to appoint a GAL.

What if I don’t like the GAL or think that they aren’t being fair to me? Practically speaking, your options are limited.  The most important thing you can do in this circumstance is work with an experienced family law attorney who can discuss with you your side of the case, advise you on potential additional facts relevant to a GAL that would support your arguments,  and can improve your chances of a successful outcome by skillfully applying their years of knowledge and expertise to present your side of the story in the best possible light.

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