GALs: What is a Guardian ad Litem, and what is their Role in a Custody Dispute?

A Guardian ad Litem (commonly referred to by its acronym GAL) is a person, usually an attorney, appointed by a court to represent a person of diminished capacity’s (usually a child) best interests in a legal proceeding. “ad Litem” is Latin for “for the suit,” meaning a GAL is a person’s guardian for the length of a legal matter. GALs can be appointed for many different reasons. They are frequently involved in delinquency proceedings, abuse/dependency/neglect cases, and sometimes when an adult does not have the mental faculties to act or make decisions in their best interests. This article however will focus on a GAL’s role in a custody dispute.

What do GAL’s Do?

When I am appointed GAL of younger children, and the child wonders why I have come to talk to them, I frequently say “I help mommies and daddies figure things out when they disagree.” In adult terms, a Guardian ad Litem’s role in a custody matter is to perform an independent investigation of the facts surrounding the matter, speak to those involved (including the child(ren) if they are of appropriate age), and make a recommendation to the court as to, in the GAL’s professional opinion, what is in the child(ren)’s best interests. As I said before, GALs are usually attorneys, but in certain matters, Ohio courts appoint layperson Court Appointed Special Advocates (CASAs) to perform the GAL role when matters of law are unlikely to arise.

What do GALs not do?

While a good GAL’s skillset is broad, there are several things a GAL is not. First, a GAL is not an expert witness. GALs may have the capacity to be expert witnesses in other legal matters, but they are not such in their capacity as GAL. GALs give their recommendations through their knowledge of the law and the dynamics of domestic relations and juvenile matters, but if the parties disputed medical or therapeutic treatments for their child, a GAL is not the appropriate witness to call supporting either side. This leads to the second thing GALs are not. GALs are not experts at everything regarding children, despite many parents’ beliefs to that effect. This most commonly comes up when a child has complex medical needs. While a GAL may be able to give a recommendation taking into account a residence’s proximity to a hospital, the likelihood of a parent to seek proper treatment for the child, or past physical injuries sustained while in one of the parents’ care, many parents wish me to advocate their treatment, therapy, and even nutritional choices to the court. That is testimony best provided by a healthcare professional.

What Kind of Things do GALs Recommend?

The most commonly contested issues in custody matters that GALs are appointed to assist with are legal custody and physical custody. That is, who has the authority to make decisions on behalf of the child, and who will the child be with when. Common disputes include which school district the child will attend, whether the parties will have equal time with the child or will one house be a “home-base,” especially during the school year. Ohio divorce/dissolution decrees mandate the parties inform the court and each other if they intend to change residences. A frequent question is whether or not is in the child’s interests to move residences also (that is not to say a court can rule a parent cannot move, but it may necessitate a change in custody scheme).

What do GAL’s Consider Most in Their Recommendations?

Ohio GALs’ investigations are ruled by Rules of Superintendence for the Courts of Ohio 48, but the rule is very broad, and courts generally give GALs a great deal of discretion in their investigations and recommendations. There is however one thing many if not most GALs care about first (after the child’s physical safety of course). I am going to steal a line that makes its way into several Southwest Ohio counties’ standard parenting plans. The absence of conflict is even more critical than the amount of time either parent spends with the child. If the court would let me, I would write this on every parent I interview’s bathroom mirror. If there is conflict between parties to a custody dispute, the GAL is going to look for the source of that conflict (whether it be a person, visitation schedule, activity etc.) and recommend the court take measures to remove or ameliorate that conflict. Other things GALs consider is the fitness of the parents to parent, support systems each household has in the area, ability of the party to provide for the child’s financial and mental wellbeing, and the actual logistics of implementing each party’s preferred outcome of the case.

Conclusion

Court proceedings, motions, hearings, and the rules of evidence are usually not the best ways to find out the wishes of a child or what is in the child’s best interests. At the same time a GAL’s scope is limited to the best interests of the child. Fairness to the parties, the interests of other 3^rd parties to a case, and even the law is frequently outside a GAL’s charge (a Magistrate once did not follow my recommendation because he found it impinged on the authority of another court). It is for that reason it is important to remember that GALs only make recommendations in the best interests of the child. It is for the Court to rule on the matter.