By: Jennifer Riedy
If you have taken a family law class or were involved in the family violence clinic, you probably have some familiarity with the role of a guardian ad litem (GAL). A GAL is primarily used in family court and can be appointed in numerous types of cases, including, but not limited to: divorce, paternity, custody, paternity set-asides, adoption, termination of parental rights, child in need of care actions, abuse and neglect cases, guardianships and conservatorships.
The Supreme Court of Missouri enacted Standards with Comments for Guardians Ad Litem in Missouri which went into effect on September 1, 2011. You can view the standards and comments here. All attorneys who are appointed to represent the best interest of a child as a GAL are expected to comply with the standards that have been enacted by the Missouri Supreme Court.
In order to be eligible to be appointed as a GAL, you must be a licensed attorney in the state of Missouri and complete 8 hours of continuing legal education (CLE) devoted to GAL training. After the initial 8 hour training, you will need to complete 3 hours of CLE devoted to GAL training annually to be eligible for continued appointment as a Guardian ad Litem. Further, many courts, including the 16th Circuit, where I primarily practiced, require you to submit an affidavit each year indicating that you have fulfilled all of the requirements enabling you to be appointed as a Guardian ad Litem.
During my practice, I primarily acted as a GAL in divorce proceedings, paternity actions or modifications thereof, where one parent has alleged abuse or neglect by the other parent. A GAL’s role in a domestic relations action is to 1) investigate the allegations of abuse or neglect raised by the pleadings and 2) advocate to the Court for what is in the best interest of the minor child/children. Guardian’s ad Litem are not the attorney for the child, and therefore, what the GAL believes is in the child’s best interest may be the exact opposite of the child’s wishes; however, the standards are clear that the GAL shall remain objective and preserve a clear focus on the child’s best interest.
When a Guardian ad Litem is appointed in a case, the GAL is made a party to the action, and therefore, must be part of any settlement that may arise regarding the child, including, but not limited to, custody, parenting time, visitation and child support. The Guardian ad Litem has a duty to interview all persons having contact with or knowledge of the child in order to ascertain the child’s wishes as well as to investigate the allegations that have been raised, which includes in almost all instances, interviewing the child.
The Guardian ad Litem shall also, when appropriate to represent the best interests of the child, file petitions, motions, parenting plans, responses or objections. Further, the Guardian ad Litem shall participate fully in any proceeding before the Court and may examine, cross-examine, subpoena witnesses and offer testimony. In addition, the Guardian ad Litem regularly makes a recommendation to the Court. A GAL may testify to particular facts relating to the best interests of the child or to the recommendation, but will be subject to cross-examination. The Court has discretion in determining whether or not to receive testimony from a Guardian ad Litem in custody proceedings. The Guardian ad Litem has a duty to ensure that the court receives all information relevant to the child’s best interests.
Guardian ad Litem practice is unique and complex and requires special education, training and experience in the following topics:
- Dynamics of child abuse and neglect issues;
- Factors to consider in determining the best interests of the child, including the required permanency planning and the child’s right to be with his or her family;
- Inter-relationships between family system, legal process and the child welfare system;
- Federal, state and local legislation and case law affecting children;
- Cultural and ethnic diversity and gender-specific issues;
- Family and domestic violence issues;
- Available community resources and services;
- Child development issues; and
- Guardian ad Litem standards.
While serving as a Guardian ad Litem can be challenging for many reasons, it is also deeply rewarding and provides a benefit to not only the children, but also the entire family.