Is appointing a guardian ad litem a positive tool to help with custody cases?
[I will respond to your question based upon my experience with guardians ad litem in Utah, where I practice divorce and family law. Each jurisdiction will have a different system governing the appointment, use, and powers of a guardian ad litem, so understand that in reading my response.]
In my professional opinion, rarely.
It is not worth the risk, in my experience. There is too much of a chance of the GAL being more of a detriment than benefit to anyone. What do I mean?
Nobody and no thing is perfect, but as long as you meet certain minimal, essential standards, you’ll stay out of jail and stay employed. As long as institutions meet certain minimal, essential standards will do and continue to do more good than harm.
But there are many things that sound good in concept, yet just clearly don’t work well in practice. The guardian ad litem (GAL) is such a thing.
So why do GAL programs still exist? Why are GAL’s appointed so frequently still? Two big reasons stand out in my mind:
1) In my experience, courts like appointing GAL’s to relieve themselves of some of the fact-finding burdens. That’s not an inherently bad idea, if a GAL could be counted on to bear those fact-finding burdens competently. But they usually don’t.
2) The idea of a child having his/her own attorney to “stand in the child’s shoes” and “give the child a voice” sounds noble, perhaps even crucial. And I am sure that if one looked hard enough, one could find a GAL who accomplishes such objectives. In my experience, however, GAL’s are too afraid and/or apathetic to do their jobs well and are incentivized (or dis-incentivized, as the case may be) by the legal system to do minimal, mediocre work yielding equivocal results that keep the GAL out of hot water. And that’s the best I can say about GALs. Worse, most GAL’s are among the least competent attorneys and are often motivated by self interest to recommend what they subjectively want done, as opposed to where the evidence points. In my experience, the GALs don’t perform with due diligence or provide insightful, impartial analysis. Instead, they base their ostensible findings and recommendations upon personal biases, agendas, and lazy (but safe-sounding) assumptions. I find many (not all, but many) GALs to be extremely petty and judgmental. Be or do something irrelevant, but that the GAL disapproves of (like holding certain political, religious, or other views contrary to those of the GAL), and don’t be surprised if the GAL’s recommendations aren’t in your favor, regardless of the actual factual and legal merits of your case.
When a proposal is made to appoint a GAL, I oppose it. There are far better, far more reliable, less time-consuming, and less expensive ways to obtain accurate, useful information that a GAL is intended to produce, but rarely, if ever, does produce. There is no need to appoint a third party to “give the child a voice,” when the child can speak for himself/herself. If the child is too young to talk or to testify competently, there is little that a GAL could provide of any substantive value anyway.
Utah Family Law, LC | divorceutah.com | 801-466-9277