When a guardian ad litem (GAL) has been appointed to a case, he or she provides a recommendation as to how parental time and responsibilities should be shared by the parties. This recommendation, though not determinative, will be heavily relied upon by the judge when making that decision. To ensure that any such decision serves the best interest of the minor child, a judge needs to understand the inner workings of a family and their life outside the courtroom. The GAL provides such insight and context into the family dynamic. For that reason, GALs serve as the “eyes and ears” of our court system and do what a judge sitting in a robe behind the bench cannot— enter the field and gather data.

In cases with parties who have diametrically opposing wishes for the minor child, the GAL plays a particularly important role – that of expeditiously investigating and recommending a course of action which is in the minor child’s best interest.

What is high conflict litigation?

The Family Law Professional’s Field Guide to High Conflict Litigation, Dynamics, No Diagnoses describes high conflict litigation as the chronic, unresolved nature of litigation in at least one of three dimensions of divorce: domain (support, property, custody, etc.); tactics (how to resolve disputes, interactions between the parties and the court system); and attitudinal (covert or overt hostility or negativity between the parties).

In the middle of these three dimensions are the children.

How does a GAL navigate these three dimensions and how do they make their recommendation?

When carrying out their investigation, a GAL will rely upon multiple sources of information. A few of these sources may include:

  • Collaterals (people who personally know the parties and/or child, such as friends, family, teachers, therapists, etc.).
  • Observations made during in-home visits.
  • Observations made during parenting time.
  • Review of parties’ written communications (i.e., email, text message) with each other and the child.
  • Pictures, videos, audio recordings.
  • Social media.

GALs also often rely on other outside professionals such as parenting coordinators and parenting supervisors to effectively assist the parties in navigating shared parenting time. The GAL will consider reports from these professionals and may choose to incorporate these reports into his or her recommendations.

A GAL has wide latitude when it comes to carrying out an investigation because there is no statutory standard or instruction. All families have their own dynamic and would not benefit from a one-size-fits-all approach. However, there are a few characteristics of a GAL that should be consistently upheld throughout the investigation:

  • Transparency: information shared with one counsel should be shared with the other.
  • Neutrality: a GAL should seek to understand both parties’ perspectives.
  • Efficiency: child-related matters should be handled expeditiously to mitigate the amount of time a child is exposed to litigation.
  • Responsiveness: while many GALs have a demanding and complicated caseload, the GAL should be actively engaged throughout the case.
  • Investigate not litigate: a GAL is not a child representative, which may be appointed as the child’s advocate and litigate on behalf of their best interest. A GAL, on the other hand, acts to gather information for the court and relies on that information to provide a recommendation.

A GAL’s role pertains exclusively to child-related issues. As such, they do not play any role in financial matters, other than potential considerations for child support to ensure the child is adequately financially supported.  A GAL does not litigate on behalf of the child or either party.

While difficult to remember when in the midst of litigation, it is important to note that a GAL is investigating and assessing a lifetime of memories and experiences. The process, when done correctly, takes a great deal of time, dedication, and attention. Providing the GAL with the necessary documentation, cooperating with interviews and at-home visits, and providing collaterals who can speak to a party’s role as a parent may assist the GAL in completing their investigation in a more efficient manner.

Prerna P. Pasulka, Partner

For more information on Ms. Patel, please visit:
www.beermannlaw.com/team/prerna-p-pasulka.

Source: Dr. Benjamin Garber, Dana E. Prescott, Chris Mulvey The Family Law Professional’s Field Guide to High-Conflict Litigation: Dynamics, Not Diagnoses (2021).