Guardian ad litem
In any divorce proceeding, a judge may appoint a guardian ad litem. This is an attorney who represents the interests of the children, assesses what custody arrangement would best for them, and reports to the judge. The circumstances in which a judge would appoint a guardian ad litem vary state-by-state. Typically, a guardian ad litem will be appointed if there are allegations of abuse or neglect. Also, a judge may wish to obtain an independent assessment of the situation if the parties are highly polarized and hold widely divergent views on custody questions. Upon the appointment of a guardian ad litem, the court will typically order one or both parties to pay a deposit for the fees. Often the fees are apportioned based on each litigant’s ability to pay, which typically amounts to a ratio of the respective incomes of the parties.
Although many attorneys and divorce litigants think of a guardian ad litem as the “children’s attorney,” this is not exactly the case. In particular, while an attorney must generally follow his client’s wishes, the guardian ad litem is not at all obligated to do what the children want. Rather, the guardian ad litem serves as the eyes and ears of the judge with regard to custody matters. A guardian ad litem has the power to be present and ask questions at depositions, interview witnesses, draw conclusions, and place those conclusions before the judge. If the guardian ad litem takes your side by recommending to the judge the position that you seeking, it can be a big help in negotiating a favorable custody settlement; conversely, if the guardian seems to take the other side, it can be a major stumbling block.
However, some practitioners think that guardians ad litem are neither appropriate nor helpful. A guardian ad litem is most often an attorney and there is no reason to believe that an attorney is well equipped to determine what is in a child’s best interests. Instead of truly identifying a custody arrangement beneficial to the children, guardians at litem are often used by many judges and attorneys to force settlements in custody disputes, thereby avoiding a trial. Judges, in particular, are prone to avoid, where possible, the stress, effort and appellate risk of a trial. Some argue that the better solution, which some courts pursue, is appointing a psychologist with expertise in the field to independently evaluate the parents and the child and determine what custody arrangement would most benefit the child.
This online custody guide is adapted with permission from “Civil War: A Dad’s Guide to Custody” (266 pages, softcover) – available in our online store.