Case update: Morgan v. Getter and the role of a GAL

By John H. Jelmers, Jr.

In Morgan v.Getter (rendered Feb. 22, 2013, and designated “To Be Published”), the Kentucky Court of Appeals rendered a first-ever decision regarding the role of attorneys representing children in contested custody hearings.

The practice  of appointing lawyers, called guardians ad litem (or GALs) is common in many jurisdictions in Kentucky; however, the legal basis for appointing a GAL has been murky and ill-defined. The Court of Appeals opinion in Morgan is notable because it highlights the need for clarity in this area of the law, and called for the Kentucky General Assembly or the Supreme Court of Kentucky to clearly outline the role of the GAL in litigation involving children.

For the purposes of the case, the Court indentified the role of the GAL as primarily to represent a child, but also to provide an opinion and advise the trial court. The Court of Appeals defined the role of the GAL as being to “counsel the court in formulating its decision.” Under the holding, the GAL is not subject to cross-examination and may submit a written report to the Court. The GAL is not an expert witness, such as a custodial evaluator. The Court further emphasized that a GAL, as a lawyer, is bound by the Rules of Professional Conduct and may not be forced to reveal client confidences.

Time will tell if the General Assembly or the Supreme Court take up the Court of Appeals on its suggestion to clarify the law.