Courts often appoint an attorney to represent the child(ren) in contentious custody cases. The child’s attorney is called a Guardian Ad Litem (“GAL”). For many years, GALs were called upon to essentially investigate the case much like what a social worker would do. They were to interview all of the parties and the children and then draft a brief report to the Court summarizing their findings and making recommendations with regard to custody and parenting time.
Recently, the Supreme Court of Kentucky clarified the role of GALs in Morgan v. Getter, 2013-CA-000196-DGE. In that case, the mother in a custody dispute did not agree with the GAL’s recommendations, and at trial, she sought to call the GAL as a witness and cross-examine him. The underlying issue in that case was whether the parties’ youngest child should be allowed to go live with her father in Florida. The GAL thought that it was in the child’s best interest to relocate to live with her father. The trial court did not allow the mother to cross-examine the GAL because, it reasoned, the GAL was an attorney for the child and as such the GAL’s testimony was protected by the attorney-client privilege.
The Supreme Court overturned the trial court’s ruling and defined what a GAL’s role should be. Basically, in its ruling, the Supreme Court held that a GAL is an attorney for the child who is responsible for calling witnesses to testify at trial, cross-examining adversarial witnesses, writing Motions, presenting the Court with exhibits, obtaining documents via subpoena, etc. Therefore, a GAL is strictly an attorney within the textbook definition of the word.
A GAL cannot, however, interview the parties and prepare a report. The Supreme Court created a new job for that. It determined that trial courts may also call upon the assistance of a de facto Friend of the Court (“FOC”) to interview the parties, child, and other relevant witnesses and submit a report to the Court outlining the FOC’s findings and recommendations.
Last, the Supreme Court also determined that the GAL is a “best interests” attorney who is responsible for advocating on behalf of the child what is in the child’s best interests. Significantly, GALs are not “client’s wishes” attorneys in that they cannot advocate exclusively for what the child wants. The Supreme Court noted that if the GAL’s assessment of what is in the child’s best interest is different from what the child desires, then the GAL has an obligation to notify the Court.
In sum, the new distinction between GAL and FOC is extremely important. An experienced family law attorney can identify whether a GAL or FOC is appropriate and beneficial in certain cases. The Domestic Relations team at Goldberg Simpson, with over five decades combined of experience exclusively in family law, assists clients with custody disputes on a daily basis. If you are currently in litigation over custody or are seeking to modify custody, you should immediately contact Mitchell A. Charney, Stephanie L. Morgan-White, Troy D. DeMuth, John H. Helmers, Jr., Callie E. Walton, Allison S. Russell, or Megan M. Cleveland to schedule a consultation.