Parents who make their respective child custody arguments to the judge are often focused on what they contend to be the child’s best interests. In some cases, however, the judge will want to appoint an individual who can advocate specifically for the child. This individual is known as a guardian ad litem.
Marisa No assists clients with family law matters including divorce, paternity, child custody, child support, spousal maintenance, guardianship, and adoption.
What Is a Guardian ad Litem in a Custody Case?
Child custody cases are often contentious, as parents clash over competing ideas of how to raise their child. Unfortunately, the child often gets caught in the middle. And while the parents will make their case about what they believe to be in the child’s best interests, if parties are in disagreement as to what that is, the court may determine that it needs the assistance of a neutral third-party perspective to help decide what is in the child’s best interests. This is where the judge may appoint a guardian ad litem.
Also known as a GAL, the guardian ad litem is typically an attorney who is chosen specifically to advocate for the child. The GAL will investigate certain matters related to custody and then make a recommendation as to what is in the child’s best interests and what they believe the judge should include in their orders. Put another way, the guardian ad litem is the formal advocate for the best interests of the child.
The GAL exists because judges have to make child custody decisions that are in the best interests of the child. And while there may be attorneys representing the parents who advocate for their client’s position regarding what they believe is in the best interests of the child, the guardian ad litem acts as an impartial representative for the child, specifically. Their goal is to help the court fully consider the welfare of the child before making any decisions.
When Is a Guardian ad Litem Appointed in Kansas City?
In both Kansas and Missouri, there are situations in which the court may appoint a GAL and others in which the court must appoint a GAL. When appointment is discretionary, the final decision is left to the judge’s assessment of the facts. When appointment is mandatory, however, the judge does not have discretion if the statutory criteria are met.
Discretionary: The court may appoint a GAL
In both states, the court has the option to appoint a guardian ad litem in either divorce or child custody cases involving, for example:
- Contested custody or visitation disputes
- Relocation disputes between the parents
- Claims that one parent is interfering with the other parent’s relationship with the child
- Claims that one parent is harming the child’s welfare
- Issues involving instability, parental unfitness, or parenting ability
- High-conflict litigation
Mandatory: The court must appoint a GAL
In Missouri, allegations of child abuse or neglect require the judge to appoint a guardian ad litem. This appointment alone does not prove the allegations to be valid, but raising these allegations does obligate the GAL to step in.
In Kansas, allegations of abuse or neglect in an ordinary family court case, such as a divorce or paternity action, do not necessarily require the court to appoint a guardian ad litem. Still, judges retain the discretion to do so. Kansas distinguishes ordinary family court custody cases from child protection proceedings. In cases that are brought pursuant to the Kansas Code for Care of Children, which are essentially cases involving a child in need, the court must appoint a GAL.
What Does a Guardian ad Litem Actually Do?
Whether your case is in Missouri or Kansas, the role of the guardian ad litem is largely the same. The GAL has the duty to do the following, among other tasks:
- Conduct interviews
- Investigate the facts that are relevant to the child’s welfare
- Investigate claims of abuse, neglect, parenting ability, and safety issues
- Review school, medical, counselor, and other records pertaining to the child
- Observe and make notes about the interactions and relationships between the child and their parents
- Appear and participate in child custody proceedings
- Make recommendations to the judge about custody and visitation
Just as well, a parent should understand what a guardian ad litem does not do. The guardian ad litem is more than simply a messenger for the child. For example, the child may tell the GAL that they prefer to live with a particular parent. But the GAL, upon thoroughly investigating the case, might not make this recommendation to the judge. The GAL’s duty is ultimately to advocate for the child’s welfare and recommend that which is in the child’s best interests.
How Guardians ad Litem Gather Information
A guardian ad litem conducts an independent investigation into the child’s situation before making any recommendation to the court. The purpose of this process is to help the judge better understand the child’s needs, relationships, and overall welfare in cases involving custody disputes and other family law matters.
Gathering information often involves interviews with parents, minor children, teachers, counselors, medical providers, and other family members who play an important role in the child’s life. Depending on the circumstances, the guardian ad litem may also review school records, medical records, and other documents relevant to the custody evaluation.
In some cases, the guardian ad litem may conduct home visits to observe the child’s living arrangements and interactions with each parent. These visits are not designed to punish or intimidate parents. Rather, they allow the GAL to better understand the child’s daily routine, home environment, and overall stability in both parents’ homes.
Depending on the child’s age and maturity, the GAL may consider the child’s wishes in issuing their recommendation. However, the guardian ad litem’s role is broader than simply repeating what the child wants. Their responsibility is to provide independent representation focused on the child’s best interests.
The information gathered during the investigation may ultimately influence custody arrangements, parenting plan recommendations, visitation schedules, and other court decisions involving the child.
Does a Guardian ad Litem Decide Custody?
No, the guardian ad litem does not decide custody matters. That power belongs solely to the judge. The GAL assists with the judge’s decision-making by presenting important information and advocating for the child’s best interests. But the judge always makes the final decision.
In practice, however, a judge is likely to give considerable weight to the GAL’s opinion. That’s because guardian ad litem is viewed as an extension of the court, conducting investigations to aid in the judge’s determinations regarding the child’s wellbeing. A guardian ad litem does not advocate for either of the parents, they advocate for the child’s best interests alone. Courts value guardians at litem not only for their input but for their independence. Understanding how judges make child custody decisions can help you and your attorney be prepared if a guardian ad litem is named.
What Does a Guardian ad Litem Look For?
Conducting an investigation is one of the most fundamental tasks that courts expect guardians ad litem to carry out. During this stage, the GAL will be looking for:
- Threats to the child’s safety: Anything presenting an immediate or potential risk to the child’s safety or health should get the GAL’s attention. While risks may come directly from either parent, they need not. For instance, the GAL will identify friends or associates of either parent who threaten the child’s well-being.
- Emotional health: The guardian ad litem also wants to know more about the people and things that either threaten or enhance the child’s emotional health. This may include the parents’ understanding of the emotional needs of the child and their ability to provide for those needs.
- Parenting ability and caregiving skills: Identifying the respective parenting abilities and caregiving skills is another duty. How does each parent balance their work, home, and social lives, for instance? Does either parent demonstrate unique strengths or weaknesses in meeting the child’s basic needs? The guardian ad litem will answer these and similar questions.
- The child’s daily routine and needs: The GAL can’t totally understand which parent has more caregiving ability without knowing the child’s routine and needs. The GAL will therefore examine the child’s life to get a general idea of what happens each day. The child’s academic, medical, and social needs are also relevant.
- Cooperation between the parents: This is an important matter because judges expect and desire both parents to work together for the benefit of the child. If one parent is more amenable than the other to compromise, negotiation, and cooperation, this could fare better for them in the final custody decision.
- The child’s relationship with both parents: In child custody cases, parents often present their best sides to the judge. That includes highlighting evidence which shows a strong and positive relationship between them and the child. However, the guardian ad litem needs to take an independent look at this relationship.
- Evidence of abuse, neglect, or domestic violence: Included here, primarily, is anything that indicates that either parent has either actively abused or failed to meet the basic needs (e.g. food or shelter) for the child. Additionally, any evidence of domestic violence which indirectly involves the child may be relevant.
- Substance abuse or mental health problems: If either parent shows evidence of unmanaged drug or alcohol abuse or mental health issues, this could undermine their parenting ability. The point of bringing these matters to the court’s attention is not to attack either parent, but to protect the child. To the extent that the child shows evidence of these problems, the GAL will identify them as well.
- The child’s living arrangement: Parents are expected to provide a stable, consistent living environment for the child. The GAL needs to know how well both parents can meet this objective. For instance, can the parents each ensure the child has a safe, clean bed to sleep in each night?
- Academic performance: The child’s performance in school is always a concern for the judge. To that end, the GAL will investigate whether parents can get the child to school on time, ensure the child successfully completes their homework, and help the child perform well on tests.
Can You Challenge a Guardian ad Litem’s Recommendation?
Yes, and that’s one of the reasons it is so important to have an experienced family law attorney representing you in a custody case. Your attorney’s role is to protect your parental rights and interests throughout the legal proceedings, which may include challenging the guardian ad litem’s findings or recommendations to the court.
Although judges often give significant weight to a guardian ad litem’s opinion, the GAL’s recommendation is not automatically accepted without scrutiny.
In some cases, your attorney may identify flaws or gaps in the guardian ad litem’s investigation. For example, the GAL may have failed to interview a teacher, coach, counselor, or another person who plays an important role in the child’s life. Your lawyer may also present contrary evidence to challenge the GAL’s conclusions, including testimony, records, or other information relevant to the child’s best interests.
Finally, your attorney may be able to raise applicable legal standards and argue that the guardian ad litem’s recommendation does not fully align with the factors the court must consider when making custody decisions. While the GAL serves an important role in cases involving custody disputes, their recommendation is only one part of the larger court process. The judge always makes the final decision.
Legal Counsel That Kansas City Parents Can Trust
Having a guardian ad litem appointed in your custody case may cause apprehension, which is why you need the steady guidance of an experienced family law firm. Get in touch with Joseph, Hollander & Craft. For your convenience, we have offices in Kansas City, Lawrence, Overland Park, Topeka, and Wichita.
