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The Roles of Guardians ad Litem and Custody Evaluators

If you are going through a divorce or child custody action or know someone who is, you have likely heard about a guardian ad litem and/or custody evaluator.  So what are they?  What do they do?

Guardian ad Litem

A guardian ad litem (“GAL”) is an attorney appointed by the court to look after the interests of a child or children during court proceedings. They are appointed from the Office of the Guardian ad Litem and basically act as lawyers for your children.  It is not uncommon for a GAL to be appointed in custody actions where there are allegations of abuse or neglect, or in protective order cases, but these are certainly not the only occasions where a GAL may be appointed—they are just the more common scenarios.

A GAL may be appointed by the court if a judge/commissioner feels one is necessary for that particular case.  A GAL may also be appointed if one or both parties requests that a GAL be appointed in their case by filing a motion or application for appointment of a guardian ad litem and obtaining the approval of the court.

Theoretically, a GAL assigned to a specific case is supposed to work closely with therapists, caseworkers, teachers, doctors or other medical professionals to determine what actions (i.e. custody awards and parent time awards) are in the best interests of the children.  However, it is important to keep in mind that a GAL often has a large case load—often more than is reasonably manageable.  More cases means less time a GAL can devote to your specific case or your children, less ability to remember case specific facts and less time to work with the parties and the children or investigate truthfulness of claims of abuse, etc.  It is also important to remember that if a GAL is appointed to your case, someone will be responsible for paying his or her fees (the GAL is an attorney, after all).  Generally, courts will split these fees between the parents/parties involved in the case, unless the parties agree otherwise, but sometimes one parent can be stuck with the whole GAL bill.

Custody Evaluator

A custody evaluator is generally a mental health professional of some kind who performs a custody evaluation.  Utah requires that the evaluator have following minimum qualifications:

• Social workers who hold the designation of Licensed Clinical Social Worker or equivalent license by the state in which they practice may perform custody evaluations within the scope of their licensure.

• Doctoral level psychologists who are licensed by the state in which they practice may perform custody evaluations within the scope of their licensure.

• Physicians who are board certified in psychiatry and are licensed by the state in which they practice may perform custody evaluations within the scope of their licensure.

• Marriage and family therapists who hold the designation of Licensed Marriage and Family Therapist (Masters level minimum) or equivalent license by the state in which they practice may perform custody evaluations within the scope of their licensure.

A custody evaluation is an examination into the lives of the parents and the children.  In Utah and pursuant to Rule 4-903 of the Judicial Council Rules of Judicial Administration, “[t]he purpose of the custody evaluation will be to provide the court with information it can use to make decisions regarding custody and parenting time arrangements that are in the child’s best interest. This is accomplished by assessing the prospective custodians’ capacity to parent, the developmental, emotional, and physical needs of the child, and the fit between each prospective custodian and child. Unless otherwise specified in the order, evaluators must consider and respond to each of the following factors:

• the child’s preference;

• the benefit of keeping siblings together;

• the relative strength of the child’s bond with one or both of the prospective custodians;

• the general interest in continuing previously determined custody arrangements where the child is happy and well adjusted;

• factors relating to the prospective custodians’ character or status or their capacity or willingness to function as parents, including:

• moral character and emotional stability;

• duration and depth of desire for custody;

• ability to provide personal rather than surrogate care;

• significant impairment of ability to function as a parent through drug abuse, excessive drinking or other causes;

• reasons for having relinquished custody in the past;

• religious compatibility with the child;

• kinship, including in extraordinary circumstances stepparent status;

• financial condition; and

• evidence of abuse of the subject child, another child, or spouse; and

• any other factors deemed important by the evaluator, the parties, or the court.

To have a custody evaluation performed one or both parties must file a motion asking the court to allow a custody evaluation and to appoint a custody evaluator.  Before doing this, however, it is important to keep in mind that conventional custody evaluations are very expensive (unless you do not consider $3,000 or so and up to be expensive, and yes, custody evaluations can cost over $100,000 if you let them).  Unless one party agrees to pay the full amount, you will likely be ordered by the court to pay part of these costs—usually each party pays half.

Generally custody evaluations run between $3,000 and $8,000 (or more), although the final cost is determined by many factors (complexity of the case, issues involved, length of the evaluation, cooperation of the parties, travel fees, court appearances, psychological testing, interviews, etc.).  Custody evaluators require initial deposits/retainers of $2,000-$4,000 be paid and all required paperwork is completed and submitted before they will even begin the evaluation.  They also require that any balances owed are paid in full before they will appear in court or submit written findings of their evaluation.  It is also important to keep in mind that the evaluator is supposed to be an impartial party and the results of the custody evaluation may or may not favor you in the end (but will still be submitted to the judge).

Dr. Matthew Davies has a very good part of his website that explains more about the custody evaluation process: drmattdavies.com.  Please note, this link to Dr. Davies’s site is not an endorsement of Dr. Davies (although many attorneys know and utilize his services) and he has not paid or otherwise compensated me to have this link included in this article (and unless and until he reads this or someone tells him about this, he doesn’t even know we’ve mentioned him in this article).  We simply find Dr. Davies’s website a good resource on custody evaluations and alternatives to them, and we believe you will too.

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