I’m often asked about Guardian ad Litems and their role in Chancery Court custody cases. The last two words, “ad Litem”, are roughly translated from Latin to mean for the purposes of this litigation. A Guardian ad Litem (GAL)usually has a limited purpose in divorce and custody cases often to represent a minor child or children, investigate claims or abuse or neglect and report directly to the Court his/her findings and recommendations.
WHY IS A GAL APPOINTED IN MY CASE?
To be frank, usually when a child is being mistreated or the law requires the judge to make the appointment. In practice I usually see GAL appointments occur when abuse or neglect allegations occur, adoptions require a termination of parental rights or domestic violence has occurred in the home (usually when the child is living in the home). Judge Larry Primeaux’s blog provides the answer to this question. You can read the entire blog for yourself at:
Judge Primeaux provides that:
MCA 93-5-23 requires appointment of a GAL “when a charge of abuse or neglect arises in the course of a custody action.”
MCA 93-15-107 requires a GAL for the child(ren) in termination of parental rights (TPR) cases.
MCA 93-17-8 requires a GAL for the child(ren) in a contested adoption.
WHAT DOES A GAL DO?
In Jones v. Brown, 154 So.3d 919 (MS. Ct. App. 2015), the Appellate Court of Mississippi provided the general purpose and scope of GALs and their duties:
“In Mississippi jurisprudence, the role of a guardian ad litem historically has not been limited to a particular set of responsibilities. In some cases, a guardian ad litem is appointed as counsel for minor children or incompetents, in which case an attorney-client relationship exists and all the rights and responsibilities of such relationship arise. In others, a guardian ad litem may serve as an arm of the court—to investigate, find facts, and make an independent report to the court. The guardian ad litem may serve in a very limited purpose if the court finds such service necessary in the interest of justice. Furthermore, the guardian ad litem’s role at trial may vary depending on the needs of the particular case. The guardian ad litem may, in some cases, participate in the trial by examining witnesses. In some cases, the guardian ad litem may be called to testify, and in others, the role may be more limited.”
HOW WILL A GAL BE APPOINTED TO MY CASE?
In practice either one of the attorneys will file a motion for the appointment of a GAL or the Chancellor will make a sua sponte motion (the Court’s own motion) when allegations of abuse / neglect are raised. I have even experienced judges stopping a trial or hearing dead in the middle to appoint a GAL and reschedule.
WILL I HAVE TO PAY FOR THE GAL?
Yes, you may have to pay for the GAL. There are usually three ways to go about getting the GAL paid. First, the Court will often order the party bringing the allegations to pay an upfront retainer for the GAL, usually in the amount of around $500-$5000 depending on the case and the length of the distance the litigants reside from the venue and other factors. Secondly, other judges may prefer to make both parties split the fee up front. Another option I have experienced, when both parties were essentially unable to pay, the judge had the County pay for the GAL. Will these expenses be paid back to you? Maybe. It depends on whether your allegations are substantiated and the judge. If your allegations are substantiated, the other party is in contempt, or the judge finds that reimbursement of your fees by the opposite party would serve fundamental fairness and the principles of equity, you may, just may, get your money back. Think of it as a bonus if you do, because it doesn’t happen often.
WHAT WILL HAPPEN AFTER THE GAL IS APPOINTED?
The GAL will investigate you and your life. The GAL will come to your home, look through your rooms, question you, question your witnesses, talk to your child without you being present, order medical records, view school / educational records and much more. Expect these actions to be taken. If they are not, you should begin to ask why and discuss the GAL’s role in your case with your attorney.
After the GAL’s investigation he/she will likely issue a written report to the Court and your attorney will get a copy. The GAL may do follow up investigations and subsequent reports leading up until such time the Court concludes the case by a final order. Sometimes, temporary orders are entered by the Court, and the GAL may continue in his/her role until a final trial or further order of the Court.
WHAT IF THE GAL’S REPORT IS BAD FOR ME?
If the report does not favor you, then you should consult with your attorney regarding tactics at trial to address any issues raised by the GAL’s report. The Court is not bound by the report of the GAL, but in the real world, the GAL’s word is usually golden.