Friday, February 22, 2008

Guardians Ad Litem and Child Custody: A Report from the Trenches

Recently, I requested in a custody case that the court appoint a guardian ad litem (GAL). Opposing counsel objected and court upheld the opposing side. Opposing counsel argument against a GAL consisted of the following:

2. That on January 28th1, 2008 Petitioner FATHER filed a request for the Court to appoint a Guardian Ad Litem without any specific reasons for the appointment other than that custody is at issue.

3. That the parties' minor child is only 1 year and 5 months of age, and a Guardian Ad Litem is not necessary in the above cause of action.
What is a GAL? Minnesota Family and Divorce Blog has a very good description of a GAL:
Guardians ad litem are appointed to represent the interests of the child. A guardian ad litem is not literally the child's attorney, and may or may not be a practicing attorney. The guardian ad litem becomes familiar with the child and the child's circumstances so as to be able to inform the court of what is in the child's best interests. The guardian does not have the authority to make the custody decision, but the guardian's comments and observations are given substantial weight. The guardian may be involved in the case over the course of weeks or months (and less commonly, years).
The guardian ad litem statute reads as follows:
IC 31-17-6-1
Sec. 1. A court in a proceeding under IC 31-17-2, IC 31-17-4, this chapter, or IC 31-17-7 may appoint a guardian ad litem, a court appointed special advocate, or both, for a child at any time.
I do not see any grounds required by the statute. Opposing counsel's motion seems to me as requiring some extraordinary grounds for appointing a GAL.

What can be done? Probably not much. While Case Law Development: Errors in Appointing GAL Subject to Harmless Error Analysis from Family Law Prof deals with a California case, I see no reason for a different result from the Indiana appellate courts. Appointing a GAL lies well within the trial court's discretion and I do not see the appellate judges will impinge upon that discretion.

Which does not mean I cannot speculate about a trial court's refusing to appoint a GAL and propose why a GAL should be appointed in every contested custody case.

I know severla years ago that Madison County's juvenile court had a shortage of Court Appointed Special Advocates (CASA's) . I suspect we have the same shortage in personnel and maybe also a shortage in funding for GAL's. Even though Indiana has a statute establishing A GAL fund:
IC 31-17-6-9
User fee; funds
Sec. 9. (a) The court may order either or both parents of a child for whom a guardian ad litem or court appointed special advocate is appointed under this chapter to pay a user fee for the services provided under this chapter....
As the trial court did not impose the cost on my client, cost may not have been a factor. I had that suspicion somewhat confirmed during a conversation with the one (yes, one) GAL handling the CHINS (Child In Need of Services - children taken from their homes by the State of Indiana) case for Madison County. He has a full enough plate as it is.

However, we both agreed that GAL's serve the child custody process by giving the court a perspective on the issues more ostensibly objective than what might be expected from the parents. I find an advantage exists when an apparently more objective source supports my client's apparently subjective position about the child's best interests for custody.

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