By Sara Pitcher
My previous article “Guardian Ad Litem, Divorce and Child Custody” discussed a Guardian Ad Litem’s role in divorce and child custody cases, which is primarily to advocate for the child’s best interests and file a report with the court.
While the Guardian Ad Litem’s child custody report and findings are very persuasive to a judge, the judge is not bound to follow the Guardian Ad Litem’s recommendations.
Although the judge is not bound to follow the GAL’s recommendation, they often do as it would have been a waste of the parties’ resources to pay for a GAL only to have the judge issue a ruling inconsistent with the recommendations of the GAL without sufficient cause.
For this reason, it is best to have a favorable GAL report and to work cooperatively with the Guardian Ad Litem.
But if the child custody report is unfavorable to you, you do have options.
If a Guardian Ad Litem’s report is not favorable toward you or your position in the case, you may either try to work toward a settlement with the opposing party or litigate the issue in spite of the less than favorable report.
In order to successfully litigate the issue, you must present evidence to refute the Guardian Ad Litem’s position in the report. In order to do this, you will likely want to engage in discovery with the Guardian Ad Litem. You may engage in discovery with the Guardian Ad Litem like you would be permitted to with any other expert witness in a case.
To rebut the testimony or report of the GAL, you may also want to present the testimony of an unbiased expert witness who disagrees with the report of the Guardian Ad Litem, such as a child psychology expert.
However, if you plan to rebut the report of the GAL, be cautious not to attack the GAL personally or to appear desperate to refute the recommendations of the GAL without significant evidence. The judge may view this negatively.
The judge may have personally selected the GAL based on their previous workings with them and may have selected them based on their perceived ability to handle your particular case. The judge may not take kindly to an attack on the GAL – who is an officer of the court – if it is not supported by strong evidence.
Once a Guardian Ad Litem has been appointed to your case, whether you requested one or not, your best approach would be to cooperate with the GAL. Focus on what you believe to be in the best interests of your child and act accordingly. Once the GAL issues her report, you should decide your best course of action after consulting with an experienced mens divorce attorney.
Cordell & Cordell has divorce lawyers for men located nationwide.