by Erik Chambers, Partner, Stern-Edlin Family Law, P.C.| Jan. 9, 2021 |
You are in the middle of a custody dispute, and the Court appoints a Guardian ad Litem to represent the best interest of your child. That sounds good, but what does this mean for your case practically? What will the Guardian ad Litem do?
The primary objectives of the Guardian ad Litem in your case are to investigate for the Court what is in your child’s best interest and to make recommendations to the Court. How much time should your child spend with each party? Which parent should get to make the final decision on major decisions impacting your child? This Article will outline in detail the life of a Guardian ad Litem investigation, which generally consists of (1) the completion of a questionnaire and an initial meeting; (2) home visits and meeting your child; (3) interviewing witnesses and reviewing records; (4) making recommendations; (5) participation in settlement negotiations; (6) the preparation of a final report; and (7) the Guardian’s participation at trial.
First, however, let’s briefly identify what the Guardian ad Litem does not do. There are three common misunderstandings surrounding the role of a Guardian ad Litem. First, the Guardian ad Litem does not decide what happens with your child. The Guardian’s recommendations are not binding, and the Judge is the sole decision-maker on matters of custody. Second, the Guardian ad Litem is not your attorney and does not (and cannot) give you any legal advice. The Guardian serves in a neutral capacity and does not represent either party. Third and finally, the Guardian ad Litem does not keep information told to them confidential, regardless of who shares the information with the Guardian ad Litem – you, your child, or any witnesses.
Questionnaire and Initial Meeting
The first step in the Guardian ad Litem process typically involves an initial meeting between the Guardian ad Litem and each parent individually. Prior to that meeting, the Guardian ad Litem may request that you complete an introductory Questionnaire.[1] Although each Guardian ad Litem’s Questionnaire is different, the Questionnaire usually requests background information about the case and about your child, the opposing party, and you, including, but not limited to, custody history, criminal history, employment information, educational history, mental and physical health, marital history, and residential history. The Questionnaire usually also asks for the name and contact information of your child’s teachers and childcare providers and any doctors and mental health professionals treating you and/or your child. It may also ask for the names and contact information of anyone with whom you would like the Guardian ad Litem to speak during his or her investigation. Finally, the Questionnaire may give you the space and opportunity to ask any questions you have for the Guardian ad Litem to be discussed during the initial meeting.
Depending on when you are reading this, the initial meeting may occur virtually via Zoom or some other video conferencing application due to the ongoing COVID-19 pandemic. At that meeting, the Guardian ad Litem will typically explain the Guardian’s role and approach to his or her investigation. If the Guardian ad Litem had you complete a Questionnaire, they will likely also ask you follow-up questions about the answers you gave and information you provided. If you did not complete a Questionnaire, the Guardian ad Litem will probably spend a significant amount of time during this initial meeting gathering the background information that would otherwise have been provided in the Questionnaire. The Guardian may also have you sign releases to authorize them to speak with any professionals (doctors, therapists, teachers, etc.) or obtain records (medical, educational, etc.), if applicable, and may schedule a home visit and a time to meet your child.
Home Visits and Meeting the Child
The Guardian ad Litem will almost always choose to visit any residence where you intend to reside with your child if awarded custody and/or parenting time. If that residence is not local, travel will be necessary, and you will need to coordinate the logistics of the visit with the Guardian ad Litem, including the costs associated with same. If anyone else will reside with you and your child, the Guardian ad Litem will also want to meet that person.
The Guardian ad Litem will likewise want to meet your child and observe your interactions with your child. The home visit may provide a perfect opportunity for the Guardian ad Litem to do so. However, during the pandemic, many Guardians ad Litem have scheduled these meetings separately to occur at parks, playgrounds, or other outdoor venues. The particular role your child will play in the Guardian ad Litem’s investigation will depend largely on your child’s age and maturity. For example, the Guardian ad Litem will likely have more extensive conversations with older children.
Interviewing Witnesses and Reviewing Records
Third party interviews of people who know you, the opposing party, and/or your child or who otherwise have knowledge of your case (called “collateral witnesses”) and the review of records are crucial to a Guardian ad Litem’s investigation. You and the opposing party will be asked to provide a list of collateral witnesses. While Guardians will generally speak with anyone you specifically request, the Guardian ad Litem can also choose to speak with anyone they believe is necessary to complete the investigation. In providing names to the Guardian ad Litem, quality is almost always better than quantity, and it is important to include neutral third parties such as teachers, coaches, doctors, and therapists, as applicable, in addition to family members and friends. Note that some Guardians ad Litem require that any non-professional third parties (i.e., family and friends) initiate contact with the Guardian ad Litem.
In conducting third party interviews, the Guardian ad Litem will be looking for specific examples of which the witness has direct knowledge as opposed to blanket statements (e.g., “she is a great mom,” “he is an involved dad”) and information known only because you shared it with them (e.g., “she told me that he never goes to church”). If you, the opposing party, or a witness refuses to cooperate with the Guardian ad Litem, the Guardian ad Litem will ultimately advise the Court regarding the lack of cooperation when making his or her final recommendations. If the Guardian ad Litem’s investigation reveals any alleged abuse or neglect, the Guardian will be obligated to report the allegations to the Department of Family and Children Services for further investigation. If necessary, the Guardian ad Litem can also ask the Court to order you, the opposing party, and/or your child to be evaluated by a medical or mental health professional.
Guardians ad Litem also often review documents pertaining to you and your child and rely on those records to complete their investigation. You may voluntarily produce certain documents to the Guardian ad Litem and the Guardian ad Litem may request documents from you or directly from third parties, as applicable. Commonly reviewed records often include school report cards, Individual Education Programs and 504 Plans, school communications, childcare records, medical and therapy records, psychological evaluations, doctor communications, police reports, background checks, prior court documents, photographs, videos and other recordings, parent communications, and records from the Department of Family and Children Services.
Making Recommendations
After the Guardian ad Litem has completed (or nearly completed) the investigation, they may elect to make informal recommendations. The Guardian may do so via e-mail, letter, or telephone conference, or some combination thereof, and will often accompany the recommendations with a summary of the work completed thus far. If you have an attorney, the Guardian will typically make the recommendations to your attorney who will share them with you. The purpose of the informal recommendations is two-fold. First, it provides you with an opportunity to ask the Guardian for clarification, further input, and possibly to complete additional investigative work if you believe something was missed or if you want to provide additional evidence for consideration, possibly on a topic that you did not realize was of particular interest to the Guardian ad Litem. Second, the recommendations are provided in hopes that they can assist you in settling your case. If a reasonable agreement can be reached between the parties, this is usually preferable to having the issues decided by a judge. The recommendations are usually not final at this point and are subject to change as you and/or the opposing party provide additional information to the Guardian and if any facts change prior to the final trial of your case.
Additionally, during the pendency of the litigation, there may be more urgent issues on which you want the Guardian ad Litem’s more immediate input. For example, if you and the opposing party are unable to agree regarding whether your child needs tutoring, will begin mental health therapy, or will be allowed to attend a certain sleep away camp. Guardians ad Litem differ on how they approach these interim issues. Some take a very active role during their investigation and do not hesitate to voice an opinion, while others prefer to refrain from making any recommendations whatsoever prior to the completion of their investigation. This may be a good question for you to ask the Guardian ad Litem during your initial meeting. Even if the Guardian is willing to weigh in, you and the opposing party will still ultimately have to agree or ask the Court to decide the issue. Remember, the Guardian ad Litem has no decision-making authority, and you are not bound to follow their recommendations unless and until it is made an order of the Court.
Participation in Settlement Negotiations
Once the Guardian ad Litem has made recommendations – either on an interim or a permanent basis – you may wish to try to settle your case, perhaps through written negotiations or through participating in mediation. In fact, in most counties, courts will require you to participate in mediation before you can go before the judge assigned to your case for determination. Mediation is the process of engaging a trained, neutral third party to assist you in trying to resolve your case.
Often, the Guardian ad Litem will be included in the negotiation process and will participate in mediation. They can usually provide the mediator with valuable information about the issues and dynamics of your case that may assist the mediator in determining how best to approach the mediation. If the Guardian ad Litem does not participate in mediation or other settlement negotiations and an agreement is reached regarding custody of your child, you must notify the Guardian ad Litem of the agreement. If the Guardian ad Litem disagrees with the agreement or any portion thereof, they may inform the Court of their objections prior to the Court approving the agreement.
Preparation of Final Report
It may be that you are unable to settle your case based on the Guardian ad Litem’s informal recommendations. In that case, you may ask the Guardian ad Litem to prepare a formal written report. The report is generally comprised of (a) a detailed summary of the Guardian ad Litem’s investigation (e.g., a review of the Guardian’s communications and meetings with you, the opposing party, and your child, who the Guardian spoke with, who failed to cooperate with the investigation, and what records the Guardian reviewed); (b) an analysis of the information gathered; and (c) the Guardian’s recommendations regarding custody, parenting time, and other issues necessary to advance your child’s best interests under the circumstances. Should you request a written report, the Guardian ad Litem may demand an additional retainer to cover the cost of preparing the report.
The report is provided to you and your attorney and to the Court and cannot be further distributed unless the Court orders otherwise. You can use the report at the final trial of your case in questioning the Guardian ad Litem about his or her investigation and recommendations. If the report is filed into your case for any reason, it must be filed under seal because of the sensitive nature of the detail included therein. Filing a document under seal simply means that it cannot be accessed or viewed by the public.
Participation at Trial
If you are unable to settle your case on a temporary basis, you may have a temporary hearing. If you are unable to settle your case on a permanent basis, the Court will schedule you for a final trial. Typically, and without the appointment of a Guardian ad Litem, anyone with knowledge or documents relevant to your child would need to testify at any temporary hearing or final trial.[2] This may include family members, teachers, therapists, coaches, family friends, etc. However, when a Guardian ad Litem has been appointed, they will be the Court’s witness and will be qualified as an expert on the best interest of your child. In that capacity, the Guardian ad Litem can testify about what your child and other witnesses shared with them and what documents they reviewed during the investigation. This is one of the greatest benefits to the appointment of a Guardian ad Litem. It allows you to avoid having to drag third parties into Court, and it can save costs by greatly reducing the length of trial. One person – the Guardian ad Litem – can testify in place of numerous others. You or your attorney will have an opportunity to ask the Guardian ad Litem questions about his or her investigation and recommendations.
The Judge will then make the final decision as to the custody of your child after considering the Guardian ad Litem’s testimony and the other evidence presented at trial. Judges do not always follow the Guardian ad Litem’s recommendations but instead will make an independent determination regarding what is in your child’s best interest. This may mean that they accept all, some, or none of the Guardian ad Litem’s recommendations.
Many courts appoint Guardians ad Litem in cases where the custody or visitation of a child is in dispute, and each Guardian ad Litem manages his or her investigations differently. While this Article attempts to provide you with general information about the Guardian ad Litem process, it is important that you understand the approach and philosophy of the particular Guardian ad Litem appointed in your case. Therefore, you should not hesitate to ask your attorney and/or the Guardian ad Litem any questions you have as your case proceeds.
Erik Chambers is a partner with Stern & Edlin Family Law, P.C. and has practiced exclusively in the area of family law for 9 years. Click here to learn more about Erik.
NOTES:
[1] The Guardian ad Litem may contact you to provide the Questionnaire and schedule your initial meeting or the order appointing the Guardian ad Litem may require that you make the initial contact. In either case, the Guardian ad Litem will only get started on your case after there is an order appointing them to serve in that capacity and typically once a fee retainer is paid for their services.
[2]Note that, at a temporary hearing, only you and one other witness can testify in-person (or virtually) on your behalf. All other witnesses testify via Affidavit. At a final trial, however, all witnesses must generally provide live testimony.
[1] The author gives special thanks to Janet Hardman, Senior Associate with Stern & Edlin Family Law P.C., and Stephanie Wilson of Stephanie Wilson Family Law, LLC, for their review of and feedback on this Article.