Will the judge agree with my Guardian ad litem?
Guardians ad litem are great. Guardians ad litem are terrible. There's almost no middle ground, and certainly won't be for you if you're in the middle of a custody case.
Most of all, guardians ad litem are terrifying, because they get involved in your case and, ultimately, make a recommendation about what, in their opinion, is best for your children.
I'm a mom, too, so I get how you're feeling. I can even imagine, though not from personal experience, how it must feel to leave it all up to a court to decide. To be fighting with your child's father over things that you feel are critical. To wonder whether the court will allow you to be the kind of mother you always wanted to be.
Custody and visitation is emotional as much as anything else, and you're probably battling a lot of feelings. It's totally understandable. And then, you've got a guardian ad litem involved, and you have to invite him or her into your life, try not to wallop them over the head as they ask invasive (and potentially embarrassing!) questions about you and your life, and even refrain from telling them all the things about your child's father that make you wish you had never laid eyes on him – all while waiting for him or her to make an ultimate recommendation to the judge about what he or she think sis best for your child! Diplomacy, especially under circumstances like these, is tough!
What will happen in my case? Will the judge agree with the guardian ad litem?
Often, though not always, the judge does agree with the guardian ad litem. Generally speaking, guardians ad litem are really well respected, and they're an important part of a custody case.
I can safely say that, in all my years of doing this, I have never once met one of the children in question. Can you imagine how inappropriate that would be? I mean, I'm pretty nice and all, but, at the end of the day, I'm there to represent the child's mom. I'm not really there to make an ultimate determination about what's in a child's best interests. (Though, of course, I do argue that certain things either are or are not in a child's best interests – it's just that I don't make a final decision about it!) I'm not trained! I'm just a regular old attorney.
Guardians ad litem are attorneys, too, but they're trained to deal with kids. They don't represent mom or dad; they work with the children specifically, to make sure that their voice is heard. It's not so much about the child's preference; the statute only allows a child of suitable age and discretion to have a preference (and, even then, the child is still a minor and, ultimately, not in a position to really make that decision). It's more about making sure that the child has a voice and is represented in court. The GAL can look at the case, and at the individual child, and get to the heart of some of the details that a regular attorney can't.
The judge doesn't always agree with the GAL, but the judge always recognizes the importance of the guardian ad litem in the proceedings. The GAL has a chance to give a report, question witnesses, and discuss his or her findings in court. The GAL has a special place, and will have an opportunity to speak his or her mind.
What does a GAL do? What if my guardian ad litem didn't do his job?
Just like anybody else, there are good and bad GALs. I hear all the time about people who hate their GALs with a fiery passion unlike anything else I've ever seen. I get it. GALs are invasive. They're up in your business. They say things that aren't very nice, and are sometimes embarrassing.
But what does a GAL do? What MUST he or she do? What if he or she hasn't done what he or she was supposed to do in your case?
Luckily, there's a pretty good guide out there that tells you all you need to know about standards for judging a GAL's performance. You can find it here.
If my guardian ad litem hasn't done his or her job, can I get him or her removed?
Ummm…no. Almost certainly not. And, like it or not, you would be very unwise to try. Though there can be exceptions, and I have heard (you know, maybe ONCE) about a GAL getting successfully removed. But it's probably a really horrible idea.
If you're wondering about getting a GAL removed, you're probably best off talking to an attorney about your case one on one and figuring out a better plan for moving forward. Keep in mind that you'll probably want to work on repairing that relationship first and foremost, but it's theoretically possible (though definitely not probable) to have a GAL removed.
Is this a good system? What about damage to the children?
But I do think that there has to be SOME way to talk to children about this, and to have their interests represented in court. Otherwise, it's all mom and dad, and that doesn't make it very easy to assess what's in a child's best interests. And, like it or not, a child has a place here.
And what's the alternative? Bringing a child into court? No, thank you. I prefer NOT to question and cross examine children on the witness stand. That is no place for a child. Talk about damage!
The judge could also do what's called an in camera interview with the child, meaning that the judge takes the child back into chambers and talks to him or her. Still – kinda scary for a kid, no?
Still, does a GAL do damage to the child? It's possible. I don't know. Like I said, I never talk to the kids. I think it depends on the sensitivity of the child in question, not to mention the training and ability of the GAL him or herself.
The risk, I think, is in letting the child think that he or she has an inflated level of importance in the proceedings. Sure, the child is important – but also, the child is a child, and sometimes grown ups have to make hard decisions that children just can't understand. I think it's important to talk to your child (ideally with your child's father, or with the help of a coparenting therapist or someone like that) about what's happening, and productive ways of dealing with it and any emotions involved.
Otherwise, I think you risk letting the child think that he or she gets to pick whether he or she will live with mom or dad. Then, either they get their way, and they think they're powerful enough to make those choices (and you'll forever deal with the consequences of something like, "Well, then, I'll tell the judge you're MEAN next time and I don't want to see you ever!"), or, alternatively, that it doesn't matter what they say because they're powerless anyway. It's a difficult dichotomy, and ones that parents need to be prepared to address before their custody case is underway.
But that's me just dreaming over here. You wouldn't be here if you could just agree, would you? And sometimes it's actually critical to go to court, especially if you just can't agree on what's best. Is there a cost? Certainly. There's a cost to all that we do, don't you think? Advantages and disadvantages, and only you can weigh them against each other and make the best decision for you and your children.
For more information, or to talk to one of our attorneys about custody cases and the advantages and disadvantages of working with a GAL in your case, give our office a call at 757-425-5200.