Access to Justice: Trial Lawyers
What is a Guardian Ad Litem?
A guardian ad litem (GAL) is an attorney that can be appointed in a divorce and/or child custody cases to represent the best interest of child(ren) in determining the best outcome for the child in the divorce and/or child custody case.
In addition to divorce and/or child custody cases a GAL is appointed in protection orders involving children or in Department of Social Services abuse and neglect of children allegations that have been filed in a court.
Foremost, judges, when dealing with divorce and/or child custody cases, base decisions on the bet interest of the children standard as defined in RSMO 452.375 as follows:
The court shall determine custody in accordance with the best interests of the child. When the parties have not reached an agreement on all issues related to custody, the court shall consider all relevant factors and enter written findings of fact and conclusions of law, including, but not limited to, the following:
(1) The wishes of the child's parents as to custody and the proposed parenting plan submitted by both parties;
(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child's best interests;
(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
(5) The child's adjustment to the child's home, school, and community;
(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence as defined in section 455.010 has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and any other child or children for whom the parent has custodial or visitation rights, and the parent or other family or household member who is the victim of domestic violence from any further harm;
(7) The intention of either parent to relocate the principal residence of the child; and
(8) The wishes of a child as to the child's custodian. The fact that a parent sends his or her child or children to a home school, as defined in section 167.031, shall not be the sole factor that a court considers in determining custody of such child or children.
The GAL is instrumental at helping the court uncover a physical custody plan regarding the time each parent receives, along with the parents right to make medical, educational, and religious decisions regarding the children.
Often we say the likelihood for outburst during a court hearing is not in a criminal proceeding rather in child custody hearings. It’s difficult to allow someone like a GAL the responsibility and power they have in determining custody and decision making rights.
This is why the role of GAL’s should not be taken lightly and the duties adhered to with utmost due diligence. Some of those duties including “engaging in a vigorous and autonomous representation of the child,” State ex rel. Bird v. Weinstock, 864 S.W.2d 376 (Mo. App. 1993).
At times we see and deal with GAL’s that for some reason just don’t like a particular parent, for a reason they don’t like the way a parent looks or talks which has nothing to do with the parents parenting ability. This of course is not in the best interest of the child, instead it’s the GAL’s inability “or ineffective means to assure itself [the court] that all of the requisite information bearing on the question [of whats in the best interest of the child] will be brought before it untainted by the parochial interests of the parents.” State ex rel. Bird v. Weinstock, 864 S.W.2d 376 (Mo. App. 1993).
Further, case law stating, “the obligations of a guardian ad litem necessarily impose a higher degree of objectivity on a guardian ad litem than is imposed on an attorney for an adult.” Oosterhous v. Short, 730 F.Supp. 1037, 1038 (D.Colo.1990) (citing In re Marriage of Barnthouse, 765 P.2d 610, 612 (Colo.App.1988), cert. denied 490 U.S. 1021, 109 S.Ct. 1747, 104 L.Ed.2d 184 (1989)). State ex rel. Bird v. Weinstock, 864 S.W.2d 376 (Mo. App. 1993).
In addition, regarding the GAL “it is imperative that the guardian ad litem investigate and present its perspective to the trial judge, thereby enabling the court to render a decision in accordance with the statutory standard of "best interests of the child." State ex rel. Bird v. Weinstock, 864 S.W.2d 376 (Mo. App. 1993).
Moreover, the following duties also apply to the GAL and findings of best interest standard: https://www.courts.mo.gov/courts/ClerkHandbooksP2RulesOnly.nsf/0e1e672a205a5d878625750100635e26/a6135d5fc4666c9f8625769d005a45fe?OpenDocument
STANDARD 4.0 General Duties and Responsibilities:
The guardian ad litem shall provide not only factual information to the court but also shall diligently advocate a position in the best interests of the child.
The guardian ad litem shall be prepared to participate fully in any proceedings and not merely defer to the other parties. The guardian ad litem may examine, cross-examine, subpoena witnesses, and offer testimony.
The guardian ad litem when appropriate to represent the best interests of the child shall file petitions, motions, parenting plans, responses, or objections.
The court shall assure the guardian ad litem maintains independent representation of the best interests of the child. The court shall require the guardian ad litem to perform the guardian ad litem duties faithfully and, upon failure to do so, shall discharge the guardian ad litem and appoint another.
In short, GAL plays a vital role in a family court matter and nothing is more important than ones children and providing the best for their children, therefore it is important to understand the GAL position and to have an experienced family law attorney to help you navigate your family court case.
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