Days after I wrote about the Guardian Ad Litem (GAL) role for litigants here in the R.B. v. E.A.C. matter, another case was released on a similar issue: In The Matter of A.H.

In this case, the parties who were dual citizens of Cyprus and the US, were divorced in Cyprus in July 2018 following an action initiated by T.H. (the husband), after (a) 30 years of marriage and (b) mutually dismissing a US divorce matter in 2017, which was filed in 2012. However, the Cyprus divorce did not address support or equitable distribution. When T. H. sough to register the foreign decree in New Jersey, A.H. objected and then filed a new Complaint for Divorce in September 2018.

In October 2019, the court appointed a GAL for A.H. “to serve as an independent investigator, fact finder and evaluator to report back to the [c]ourt as to whether [A.H.] lacks sufficient mental capacity needed to conduct the litigation.” In January 2021, the GAL issued its report recommending a guardianship action, which was ordered by the Court in February.

The GAL filed a complaint for Guardianship in April 2021 with certifications of two doctors as required by Court Rule, and A. H. opposed with certification of another doctor.

Unlike in R.B., the guardianship hearing was actually held . The trial court appointed counsel for A.H. During the trial, the GAL testified about A.H.’s anxiety and inability to assist in her divorce case, plus that she told the GAL she would not be able to help her attorney in the case; a psychiatrist diagnosed A.H. with Post Traumatic Stress Disorder and Major Depressive Disorder, as well as questioned whether she had bipolar disorder and testified about her anxiety/fear around court and her husband that would greatly impact her ability to participate in the divorce; another doctor testified and diagnosed A.H. with Severe Major Depressive Disorder and Panic Disorder, and stated that her anxiety is triggered by her husband and having to be in the same place as him, as well as her loss of focus and difficulty processing what was happening in the divorce. In addition to these evaluators, T.H. testified about his observations of A.H., suicidal intent in one instance, and abusive behavior when not on medication during their marriage.

In contrast, the doctor retained by A.H. testified that she is competent though suffers from moderate depression, as well as A.H. being in treatment and on medication that is not impairing her decision making ability. However, cross-examination proved that this doctor did not speak with the psychiatrist who testified but rather only reviewed notes, and did not know many facts that could have altered the doctor’s opinion and thus testimony.

A.H. testified on her own behalf, which frankly raised more issues, inasmuch as she refused to acknowledge facts written in a prior court opinion about her mental state and instead stated it was misprinted. About A.H.’s testimony, who the court called the most important witness, it stated:

“The judge determined A.H. was the most important witness. The judge observed her throughout her testimony and reviewed evidence of A.H. being physically incapable of proceeding with hearings and the matrimonial litigation. The judge acknowledged A.H. appeared to be in control of herself in the courtroom. He did not observe A.H. shaking uncontrollably or in any inappropriate manner. The judge further noted that A.H. performed well while testifying on direct examination. The judge described a change in A.H.’s behavior during her cross-examination. The judge found that when cross-examination touched on a sensitive topic, A.H. was not completely in control of her response or reactions to questions. The judge further found that her thought process was not rational, that she became increasingly disturbed over the course of cross-examination and lashed out with inappropriate and defensive responses.

The trial court then appointed a GAL in a limited capacity for the purpose of the prosecution and defense of the divorce.

Like in R.B., the Appellate Division affirmed, finding that the proper procedure was followed:

“A guardianship complaint was filed with notice to A.H.; the complaint was accompanied by the affidavits of qualified medical professionals; a hearing was convened, testimony was taken; A.H. was represented by independent counsel; the trial court made independent findings of fact applying the clear-and convincing-evidence standard; and A.H. was adjudicated by the court as incapacitated with respect to the divorce litigation. The judgment of incapacity and appointment of A.H.’s guardian thus comported “with the due process safeguards required by our court rules and statutes.

Notably, this case also turned on S.T. v. 1515 Broad St., LLC – as described in my prior blog – a Supreme Court case mandating proper procedure before a GAL can usurp authority (specifically settlement authority) from a litigant.

In the instant matter, the trial court also addressed and rejected A.H.’s contention that the medical evaluations were stale by the time of trial as they were a year old, and that less restrictive means could have been implemented in lieu of a GAL, such as appearing virtually, which wasn’t advocated by trial competency counsel.

Simply put, this is another case in which it seems that an appointment of a GAL for a litigant will stand so long as the proper procedure is followed as outlined in the Court Rules and in S.T. Again, a case in which a litigant in a divorce seems overwhelmed by the process and causes destruction thereto, which we see every day. Here, however, the litigant was diagnosed and the guardianship hearing was held. In R.B., there was no hearing (by consent of the litigant) and no diagnosis…

…going back to R.B., if she agreed to the appointment of the GAL in lieu of the hearing, was she actually competent to do so and how would the court have known without the hearing?

Another important takeaway is the timing of the reports as we deal with that whenever expert reports are issued for trial (custody, financial, etc.), and the need to raise alternatives at the trial level to preserve client’s rights on appeal or, even better, be granted the alternative if that’s more favorable. Again, time to think about when the apply for a GAL on behalf of either party.

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