WHAT IS A GUARDIAN AD LITEM?
It is no secret that, inherent in any legal proceeding, are a copious number of Latin terms and phrases. For those not trained in the law—as well as for those that do not have any prior experience with the court system—these foreign phrases, combined with the unknown of a legal proceeding can, understandably, make an already unsettling experience even more nerve-wracking.
One such common Latin term that is often involved in a child custody proceeding is that of a Guardian ad Litem. Specifically, if child custody is involved in a lawsuit in Ohio—whether it be in a divorce or private custody matter—there is a strong possibility that a Guardian ad Litem (or GAL) may be appointed during the case. But what is a GAL? And what is a GAL’s role in a child custody case?
Simply put, a GAL is an individual—often an attorney—who is appointed by the court in connection with a legal proceeding that has a child custody aspect. Ultimately, in Ohio, the role of the GAL is to conduct an investigation into the circumstances surrounding the child custody portion of the lawsuit and make a recommendation to the court as it pertains to the best interest of the minor child or children involved in the matter. To this end, a GAL does not directly advocate for or represent either of the parents involved in the lawsuit. Instead, the GAL advocates for the best interest of the child, and therefore, the legal standard that a court must satisfy in order to craft and render a custody order in Ohio.
WHEN IS A GAL NECESSARY?
Notably, a GAL can be appointed upon the request of a party to the proceeding, or a GAL can be appointed at the court’s election, and thus, absent such a request. Typically, a GAL is most commonly appointed in a contested child custody case—or in other words, a case where the parties disagree about some aspect of an interim and/or final custodial arrangement for their minor child or children.
In connection with the lawsuit, the GAL is tasked with conducting an investigation. During his or her investigation, the GAL often performs a number of tasks, including but not limited to:
- Interviewing the parties
- Interviewing the child or children
- Speaking with collateral sources, including other family members or identified individuals
- Obtaining and reviewing any pertinent records or materials which concern the children or the parties, including those provided by the parties and/or any collateral sources, such as schools, medical professionals, etc.
TIPS FOR WORKING WITH A GAL
Ultimately, at the conclusion of the investigation, the GAL issues a GAL Report, which includes a written recommendation to the court as to the GAL’s opinion about the custodial arrangement that would be in the best interest of the minor child or children. While a GAL’s recommendation to the court is not binding with respect to a final custody allocation, the same is often instructive, and minimally, is closely examined by the court in connection with its analysis as to the best interest of the child or children.
While GALs are often appointed in and an important element of a child custody matter, it’s (understandably) not always clear to parties what their relationship to or involvement with the GAL should look like, or how they can best work with the GAL. While there, of course, is no one-size-fits-all approach when it comes to working with a GAL—especially since each case is unique and distinct—the following three tips for parties are generally universally applicable in this context.
TIP #1: A PARTY SHOULD ALWAYS BE RESPONSIVE TO AND COOPERATIVE WITH A GAL.
Indeed, one unique feature of a GAL when compared to the other court-facing individuals involved in a child custody lawsuit, is that the GAL is, typically, permitted to speak directly with all parties to the matter, including outside the presence of legal counsel. In this way, while an attorney for one party is unable to directly contact the other party if he or she is represented by counsel, the GAL is not under this same restriction. As a result, parties do, in fact, often have a lot of direct interaction with the GAL, including by way of phone calls, emails, in person meetings, text messages, etc.
In connection with those direct interactions, it is important for a party to always be responsive, cooperative, polite, and professional toward the GAL. The reason for this is simple. Quite literally, any interaction that a party has with the GAL is, as a practical matter, a part of the GAL’s investigation. Therefore, it is not uncommon for those interactions to serve as a basis, at least in part, for the GAL’s ultimate written custody recommendation in the matter. While a party’s positive interactions with the GAL, of course, do not inherently result in a desired custody outcome, it is obvious that a party’s poor (or lack of) interactions with the GAL may prove to be especially unhelpful when it comes to achieving a desired custody outcome. Thus, maintaining a good relationship with the GAL is a goal for which every party to a child custody case should strive.
TIP #2: PROVIDE HELPFUL AND TANGIBLE MATERIAL TO THE GAL.
It is usually helpful to compile and provide relevant tangible materials to the GAL at the outset of his or her investigation, and therefore, as soon as possible after the GAL is appointed. These materials can include pertinent documentation, such as written communications between or concerning the parties and/or the child(ren), relevant recordings, images, and/or other media files, as well as a list of collateral witnesses who may have information relevant to the GAL’s investigation.
Not only do these materials and witnesses usually operate as critical evidence in many child custody cases, but they also tend to be the most effective means to display to the GAL the issues that he or she may need to examine and address in connection with his or her investigation. Therefore, providing these materials to the GAL early in the lawsuit is key, as the same may prove to be instructive in guiding or otherwise informing the subsequent direction of the GAL’s investigation.
TIP #3: FIND AN APPROPRIATE BALANCE OF CONTINUED COMMUNICATION.
It is important for a party to find an appropriate balance of continued communication with the GAL during the proceeding. Specifically, while it is essential for a party to keep the GAL up-to-date throughout the case as to any issues that he or she is experiencing that may be relevant to the child custody aspect of the lawsuit, it is also critical that a party not abuse his or her ability to contact the GAL during the case. For many parties, this is an, understandably, difficult balance to achieve, especially when it concerns issues that may be perceived as more minor in nature.
To be sure, if a party is encountering significant or especially troubling challenges or difficulties with the other parent or the child(ren) while the case is pending, it is important that the GAL is informed of the same in real time. Indeed, only by informing the GAL will he or she be able to investigate and weigh in on the particular matter as soon as possible. Moreover, depending on the circumstances, these types of situations—and how the parties handle them—may even factor into the GAL’s final custodial recommendation.
However, it is likely not appropriate or necessary to alert the GAL to each and every minor custody-related challenge or difficulty that a party encounters during the lawsuit. In fact, doing so may even have the opposite intended effect and otherwise call the reporting party’s own behavior and intentions into question. Obviously, in the moment, it can be extremely difficult for parties to discern between the two aforementioned circumstances. Therefore, when a question arises as to whether it is necessary or appropriate to notify the GAL of a particular situation or circumstance, it is, typically, best practice for a party to first consult with his or her counsel before reaching out to the GAL.
Navigating a contested child custody matter can be both emotionally and logistically challenging in and of itself. Add in another court-facing professional, such as a GAL, and it can become even more complex.