A guardian ad litem (or “GAL”) is an attorney appointed by the court to represent the best interests of a child. This article explores why a parent or other interested person might want to request a Guardian ad litem in a child custody and visitation case.
The Guardian Ad Litem May Report the Child’s Preference to the Court
Virginia Guardians ad litem are governed by 11 Standards in the performance of their duties. The first standard is: Meet face-to-face and interview the child. This standard provides that in addition to interviewing the child, building a relationship with the child, and observing the child, the GAL must inform the court of the child’s wishes when those wishes differ from the GAL’s recommendation.
Why is this important? Both parents will typically report to a court that a child wishes to live with himself or herself, not the other parent. A Guardian ad litem can independently state to the court what the child’s preference is, which could carry more weight than a parent’s statement about the child’s preference.
Remember, however, that the court determines how much deference to give the child’s wishes. The younger the child, the less deference. The older the child and the more reasonable explanations the child gives for his or her preference, the more deference the court may give the child’s preference. A court will not simply rubber stamp a child’s wishes.
The Guardian Ad Litem Conducts Home Visits
A Guardian ad litem is not required to meet with the child, parents, or other interested in individuals in his or her home. But there are certain circumstances when she should do so. Those circumstances include allegations of inappropriate home environments, unsafe living conditions, overcrowding in the home, inappropriate household members, and to check whether the person is residing at the residence.
Home visits provide the GAL with important information that the she can report to the court. For example, a parent may allege illegal use of drugs or excessive use of alcohol. While a parent is usually smart enough to not openly drink or consume drugs in the presence of a GAL, the GAL might smell an overwhelming odor of marijuana at the home visit, or there might be empty beer cans strewn about a parent’s house who claims to be sober and attending AA.
The Guardian Ad Litem Has Access to Information
A Guardian ad litem may access a wealth of information without further permission from the court or the parties. At times, the parents will need to give consent. The information a Guardian ad litem may access includes health records, criminal records, open and closed cases with Child Protective Services, and school records. This is not an exhaustive list. A GAL will use his or her judgment to determine what is important in a case based on the information from the parents, child, court, and other sources.
The Guardian Ad Litem Writes a Report for the Court
In most cases, a Guardian ad litem writes a report. The report includes background information related to the case, the parties, and the child. The report also applies the best interests factors with the information the GAL gathered during his or her investigation. Finally, the report includes the GAL’s recommendation regarding custody, visitation, and any other issues the court requests. Although the report is not evidence, the court may heavily rely upon it to ask questions of the parties or child, to understand what information the Guardian ad litem relied upon to reach her recommendation, and to review her recommendation.
The Cost of a Guardian Ad Litem is Usually Reasonable
A Guardian ad litem’s services are not free. Depending on a parent’s ability to pay, the court might require a parent or guardian to pay none, some, or all of the costs of the GAL. In the Juvenile and Domestic Relations District Court, the Commonwealth of Virginia pays the Guardian ad litem’s fees, which are set according to law, and Virginia recoups the money from the parties based on each party’s ability to pay.
Payment for a Guardian ad litem is different in Circuit Court. When a case originates in Circuit Court (usually through a divorce or adoption), the GAL is paid directly by the parties. The Circuit Court will set the rate, which is usually the attorney’s normal hourly fee. And the court will require the parties to pay a certain sum of money, called a “retainer,” to the Guardian ad litem when she is appointed by the court.
In conclusion, a Guardian ad litem is not a substitute for legal counsel. The GAL represents the best interest of the child, not the parents or guardians and not the child’s wishes. There may be drawbacks to having a Guardian ad litem involved in a case. Therefore, it is important to consult an experienced Family Law Attorney when deciding whether to request a Guardian ad litem in your case.