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Defining the Role of a Guardian Ad Litem in a Custody Case
posted by Rebecca A. Smither

Defining the Role of a Guardian ad Litem in Custody Proceedings

What is the role of a Guardian ad Litem (GAL) in a custody, shared parenting, visitation or support hearing?  On September 18, 2014, the Supreme Court of Kentucky rendered its decision in Morgan v. Getter, No. 2013-SC-000196-DGE, clarifying the role of a Guardian ad Litem who is appointed by the Court to represent a minor child in contested proceedings.  More specifically, the Morgan Court answered the ongoing question as to whether a Guardian ad Litem may serve as both an attorney for a minor child as well as an investigator for the Court.

As of January 1, 2011, Rule 6 of the Family Court Rules of Procedure and Practice (FCRPP) provides that in a family court action involving a dispute over custody, shared parenting, visitation, or support, the parties may request, or the Court on its own motion, may order, among other things, the appointment of a Guardian ad Litem to represent the minor child(ren).  The trial Court in Morgan did just that when it appointed a GAL to investigate the situation, to file a report summarizing his findings, and to make a recommendation as to the custody issues.

At trial, the trial court did not allow counsel to cross-examine the GAL as a witness.  Eventually, in accord with the GAL’s recommendation, the trial court modified custody.  The matter was appealed and ultimately reached the Supreme Court to consider the claim that by allowing a GAL to testify, in effect, as to both facts and opinions through his recommendation to the court, but then disallowing cross-examination of that testimony was a violation of due process of law.

In its analysis, the Morgan Court defined the role of a Guardian ad Litem versus the role of a de facto Friend of the Court.  The Court reaffirmed the notion that Family Courts addressing custody and visitation disputes have broad rule and statutory authority to obtain the assistance of various professionals to help them understand the custodial situation and to make a determination as to the child(ren)’s best interest.  That authority includes the ability to appoint an attorney as a de facto Friend of the Court whose role includes, but is not limited, to the following:

• Investigate the circumstances on the Court’s behalf,
• File a report summarizing his or her findings, and
• Make custodial recommendations. 

Unless otherwise permitted by statute or rule, persons, including attorneys, engaged by the Court as de facto Friend of the Court to supply the Court with information must promptly be made known to the parties.  Their reports and their sources must be disclosed and, if duly summoned, they must appear at the final hearing for cross-examination.  Additionally, unless otherwise provided, the fee or fees owing to such person shall be determined by the Court and charged to the parties as costs. 

In comparison to the de facto Friend of the Court, the Court clarified the role of a Guardian ad Litem for a child in custody, shared parenting, visitation and support proceedings.  The Court clarified that under the rules, a Guardian ad Litem must be an attorney, and that attorney so appointed shall be understood as representing the child’s best interest.  Should the attorney’s assessment of those interests conflict with the child’s own wishes, the attorney should, unless the child rejects the suggestion, apprise the Court of the conflict and briefly indicate what the child desires or why the attorney has concluded otherwise.  Family Court Rules provide that Guardian ad Litem fees, like other fees of the Court appointed assistance, may be apportioned at the expense of the parents or the custodian.

Importantly, the Court clarified that a Guardian ad Litem cannot be confused with a de facto Friend of the Court.  Where the Friend of the Court investigates, reports and makes custodial recommendations on behalf of the Court and is subject to cross-examination, the Guardian ad Litem is a lawyer for the child, counseling the child and representing him or her in the course of the proceeding by, among other things, engaging in discovery, in motion practice and in presentation of the case at a final hearing.  The Guardian Ad Litem neither testifies by filing a report or otherwise, nor is a GAL subject to cross-examination.

Moving forward, Kentucky Family Courts now have a clearer definition as to what the role of a Guardian Ad Litem is as compared to the de facto Friend of the Court. 

Custody disputes have come to involve an array of aids for determining the best interest of the child.  De facto Friend of the Court and Guardian ad Litems are just two of those available options to the Court; neither are requirements for proceedings in a custody matter.

If you have questions regarding custody, visitation and divorce proceeding involving minor children, it is important to consult with a lawyer who is knowledgeable of the various tools and resources Court may use in reaching a decision. If you have further questions or need assistance, please contact our office and ask for Rebecca Smither.