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Using a Guardian Ad Litem in Divorce

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When parents are going through a divorce, they understandably place a lot of emphasis on their children and how they will be affected. Even when parents are amicable, decisions involving the children can be difficult and discussions emotionally charged. One of the most important decisions involving the children in a divorce is that of custody, and sometimes due to the sensitive nature of the case, it cannot be left solely to the discretion of the parents.

In a case where there is much contention over custody or parenting time, or other issues with regard to the children, and the custody decision falls on the court, a Guardian Ad Litem (or “GAL”) may be appointed to represent the interests of the children. The GAL is an attorney who will be neutral as far as the parties are concerned, not favoring one parent over the other.

When is a Guardian Ad Litem Necessary?

While some judges may appoint a GAL, the majority do not unless the parents fail to reach an agreement on their own. Often parents in an already tense situation and wanting to protect their role in the lives of their children will over-scrutinize small details. For example, they may too closely compare parenting time each will have with the children, or insist on having excessive input on day-to-day, minor aspects of the child’s life during the other party’s parenting time. This rigidity with regard to the parenting agreement is not in the best interest of the children, complicating recreational activities and school schedules, encouraging lack of structure, and creating an unintentional “ping-ponging” of the children between households. Attempting to over-define the terms of the agreement will delay the process, and a GAL may be assigned.

In other cases, parents may not agree on who is best suited to have custody of the children. If there is a question about either parent’s ability to care for the children in an appropriate manner, the court may seek the opinion of a GAL in order to rule in their best interest.

The GAL will sit down with all parties individually, including the children, and interview them as to their goals and feelings about the divorce. Often, the GAL will even interview neighbors or other parties who have regular interactions with the children. The GAL will utilize the information gathered in these interviews to make formal recommendations to be considered in the development of the final Custody Judgment.

A Guardian Ad Litem’s Influence

In cases with a GAL, he or she will be responsible for making recommendations to the judge on the outstanding parenting issues. A GAL’s opinion and recommendations are considered by the judge to be educated and reliable based on the time spent interviewing all parties, and for this reason it is important that counsel and client maintain a respectful and positive relationship with the GAL. While a GAL begins working on a case unbiased, any and all interactions thereafter will likely affect his final recommendations to the court.

The GAL’s recommendations will be considered carefully by the attorney drafting the Custody Judgment. This document will outline each party’s rights and responsibilities with regard to the minor child, and detail the parenting schedules of both parties. Both sides will have the opportunity to raise concerns and discuss possible changes to the document. If all parties are agreeable, these changes can be made or further negotiation on the document can be done.

Who Pays for a Guardian Ad Litem?

The GAL will be paid pursuant to a Court Order, most often allocating a portion of the cost to each party, or requiring payment be drawn from marital funds. Dividing the expense of a GAL further ensures each party is seen as a responsible contributor.

Both parties should respect the time of the GAL, and any interaction should be buffered through the attorney to avoid unnecessary calls or conversations that may have a negative impact on what the GAL reports to the judge.

While a GAL is beneficial in certain cases, it bears noting that having a GAL appointed is not right for every situation. Ideally, parties will come together and reach an agreement on the parenting issues in a case without outside help, putting aside their differences and being flexible in the process. Overall, it is important for the parties to remember that when they are creating a parenting agreement, at the very core of the agreement should be the best interests of their children.

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