In a custody matter, the court may appoint a Guardian ad Litem (GAL) to investigate a dispute and ensure that a child’s best interests are protected. If you are interested in having a GAL appointed to your case, continue reading to learn more about their responsibilities, reasons for appointment, and benefits to your case.
What is a GAL?
A Guardian ad Litem (GAL) is a neutral, impartial attorney or mental health professional whose only focus is to determine what the child wants (if applicable) and what is in the child’s best interest.
How is a GAL appointed?
According to Pa. R.C.P. 1915.11-2, and 23 Pa. C.S.A. 5334, the court, either sua sponte (without prompting or suggestion from either party) or upon the motion of a party, may appoint a GAL in a custody action. Yet, in real applications within our court system, this is rarely done. Why? One possible reason is the additional cost that one or both parties must bear in order to pay for the GAL’s services. However, there are plenty of well-funded custody cases where the appointment of a GAL is simply not done or overlooked as a possible tool to assist fact finders in determining the best interests of a child. Hence the importance of this blog!
What kind of cases are ripe for the appointment of a GAL?
Essentially, the appointment is discretionary with the court, except that under 23 Pa.C.S.A. 5334, the court SHALL appoint a GAL if there are substantial allegations of abuse of a child if counsel for the child is not already appointed or if the court is determining that the relevant information will be presented to the court only with the appointment of a GAL. This is not to say that appointment of a GAL is limited to cases where there are allegations of abuse, but as a practitioner, the odds are more in your favor of appointment if abuse of the child is an issue. Another factor that could tip a court to lean toward appointing a GAL is if there is a deficiency in mental capacity or if there are mental health issues for the child.
What are the responsibilities of a GAL?
Upon appointment, the GAL has the obligation, if age and maturity appropriate, to meet with the child, explain the legal proceedings, and continue to meet with the child on a regular basis. The GAL must be provided with access to and review all court records, review examinations of the parents and/or custodian(s) as well as the child’s medical, psychological, and school records. The GAL’s duties don’t stop with just reviewing existing records and reports though. They are required to conduct further investigations to determine what they need to know for presentation to the court. This means interviewing witnesses, such as family members, school staff, daycare providers, and treatment providers for the child. The GAL must attend all court proceedings and has the power to call witnesses, cross-examine witnesses, and present evidence regarding the child’s best interest. The GAL is required to make specific recommendations in a written report to the court regarding the child’s best interest — including any services necessary to address the child’s needs and safety. The GAL must also advise the court of the child’s wishes, where applicable, given age and maturity level, and advise the court of what findings support the child’s desires. This report becomes part of the record and may be reviewed by the parties. Parties that file may not testify but shall present legal argument to the court which is subject to examination by the parties.
What are the benefits of having a GAL?
Appointment of a GAL in a custody matter can offer many benefits to the parties, the child, and the fact finder. First, the fact finder can rely on the opinions and statements of the GAL because a GAL has no allegiance to either party and is solely focused on the child after an independent review and investigation of the circumstances attendant to the parties’ custody litigation. Second, attorneys may consider filing a Motion for Appointment of a GAL as a way around hearsay rules to get facts into the record which are reported to the GAL by school staff, medical providers, and other witnesses who typically are not always available or are reluctant to cooperate with testifying in court. Lastly, the child in a custody action often feels overlooked, as though they don’t get to have a say or have an advocate assigned to them despite the fact that the litigation is centered on them and their best interests. Assigning a GAL gives the child the assurance that they have one person assigned to them who is neutral and impartial and who will let the court know what they want and will get the chance to present their findings and recommendations on what is in the best interest of the child.
If you would like to explore your options regarding divorce and child custody, you should speak with an experienced West Chester attorney. At Potts, Shoemaker & Grossman, LLC, our attorneys are prepared to assist you in finding the best approach for your individual situation. To schedule a confidential consultation, contact us at (610) 840-2626.