By: Rudman Winchell Attorney Anthony Trask
Lawyers are notorious for using language that only other lawyers understand. “Guardian ad litem” is precisely such a term that comes up frequently in the family law arena. Most people are familiar with the word guardian, i.e. someone legally responsible for and with authority to make decisions for another person who for one reason or another is unable to care for and make decisions for him- or herself. A guardian ad litem (often referred to as a G.A.L.) is quite different. Essentially, a G.A.L. is a person appointed by the court to represent the best interests of a minor child1 in a specific and limited legal proceeding.
That last sentence has a number of subtle phrases that are very important in order to understand what a guardian ad litem is, and is not, and whether you may need one in your legal proceeding. First, the person is appointed by the court. This is not a family member or close friend, but rather, a completely neutral third party with special training and experience (usually lawyers or mental health professionals) to investigate the circumstances of a case and make recommendations to the court.
Some people simplify the concept by suggesting a guardian ad litem “represents the child” in the court proceeding. This is not accurate. The attorneys for the parties to family litigation generally advocate for the wishes of their client. While usually good intentioned, parents who are splitting up often disagree about what is best for their children. With both sides advocating for something different, the court will often appoint a G.A.L. to assist the court in deciding what is best for the child. The guardian ad litem’s role is to represent the best interests of the child for whom he or she was appointed. This may require the G.A.L. to recommend things that are completely different from what the child claims he or she wants. For example, a child may adamantly express a desire to live primarily with one parent over the other. Certainly, the preference of a child is one of many important factors that must be considered, but it is only one factor.2 If the G.A.L.’s investigation reveals that residing with that parent is not in the child’s best interest then he or she must advocate against the child’s wishes.
When a guardian ad litem is appointed in a case, he or she has an obligation to conduct a thorough investigation in order to form an opinion about what is best for the child and then make recommendations to the court.3 Obviously, this always involves meeting with the child and with the parents, but it often involves much more. A G.A.L. will often speak with various extended family members in order to get a clearer picture of the family situation. In addition, a G.A.L. will typically meet with people providing services to the child such as doctors, teachers, counselors, daycare providers, etc., who see the child on a regular basis in an entirely different setting. The guardian ad litem will also gather records from these various individuals or entities and review them as part of his or her investigation.
Once the investigation is complete, the guardian ad litem makes recommendations to the court about what is in the child’s best interest. These recommendations can include just about anything, but the biggest issue is often who should provide the primary residence for the child and the amount of and type of contact the child should have with parent who does not provide primary residence. Sometimes, when the circumstances merit it, the recommendation will be for a parent’s contact to be supervised. Often the G.A.L. will recommend the child’s time should be split equally between the parents. In those situations the G.A.L. will recommend a schedule for when and where exchanges of the child should occur. Essentially, the guardian ad litem will be asked to offer recommendations about anything on which the parents cannot agree; this could include issues of transportation of the child, physical and mental health care, religious upbringing, education, and so on.
Whereas a G.A.L. makes all of these recommendations after conducting an investigation that is far more comprehensive than anything the court could do during a trial, courts place a great deal of weight on these recommendations and often adopt them as part of the final judgment. However, the court is not obligated to follow the recommendations and the parents of the child have the right to present evidence at trial as to why the court should do something other than what the G.A.L. has recommended.
Due to the power and influence a G.A.L. can have in a case it is not surprising there is often controversy surrounding the role. The Maine Legislature is often called upon to look into proposed legislation to alter or amend the current guardian ad litem statute.4 This year is no exception and the legislature is currently in the process of looking at various potential changes. At the end of the day, however, where parents cannot agree on what is best for a child and a third party is called upon to help make that decision, regardless of how sound a decision is made it is likely that only one side will be satisfied. As a result of working under such circumstances, performing the role of guardian ad litem can be a very stressful and thankless job, but one that is extremely important.
If you would like to learn more about the role that G.A.L.s play in family matters here in Maine and the rules and standards they are obligated to follow in performing that role you will find a wealth of information at the Maine Guardian Ad Litem Institute website (www.galconnection.org). We also encourage you to contact one of our experienced family law attorneys.
1. A guardian ad litem can also be appointed to represent an adult with limited capacity, however, for purposes of this article references will be made to children.
2. The Maine Legislature has compiled a list of all of the factors that comprise the “best interest of the child” standard. It can be found at 19-A M.R.S.A. §1653.3 (www.mainelegislature.org/legis/statutes/19-A/title19-Asec1653.html).
3. The Maine Judicial branch website provides a detailed list of the rules and standards that must be followed by guardians ad litem at www.courts.state.me.us/maine_courts/family/gal/index.html.
4. The present statute controlling guardians ad litem in child custody cases is 19-A M.R.S.A. §1507 (www.mainelegislature.org/legis/statutes/19-A/title19-Asec1507.html). In child protection cases where a child is removed from a home the standards are different and can be found at 22 M.R.S.A. §4005 (www.mainelegislature.org/legis/statutes/22/title22sec4005.html). Under certain circumstances, guardians ad litem can also be appointed in proceedings before the Probate Court, seen at 18-A M.R.S.A. §1-403(4) (www.legislature.maine.gov/legis/statutes/18-A/title18-Asec1-403-2.html).