By A. G.
Picture this- you and your partner are separating. You want to make sure that the best interest of your child is being considered and that the custody is determined without bias, in a mature and calm way. However, you don’t get along with your ex. You are constantly battling over whose house your child should be at after school or for the weekends. What can you do to help your child? Choosing the right custody lawyer is an important first step in the process. Next is considering if you need a Guardian ad Litem for your child. A Guardian ad Litem (or GAL) can be appointed on behalf of your child. A GAL helps the child express their concerns and makes the experience of their parents separating or getting divorced go smoother. When it comes to parenting, there may be numerous topics that need to be addressed- topics may range from general well-being and safety to visitation and custody to school issues, to any other issues pertaining to your child. So, let’s dig deeper to discuss what a GAL does in a divorce or custody case.
In New Jersey, a GAL can be appointed by the court to represent the best interests of a child or children during a legal proceeding, and in this situation, when custody, visitation and parenting time is being decided by a judge. One or both parents can request for the court to appoint the GAL on its own motion or the Court can choose to order one on its own. The GAL assigned to the case will interview children, parents, and any relevant parties; review medical records and case notes in order to determine the best interests of the child. The GAL will file a report with the court with recommendations regarding custody of the child or children. The report should be under a protective order, meaning the public will not have access to the report. Under Rule 5:8B, the responsibilities of a Guardian ad Litem include, but are not limited to:
- Interviewing the children and parties.
- Interviewing other persons possessing relevant information.
- Obtaining relevant documentary evidence.
- Conferring with counsel for the parties.
- Conferring with the court, on notice to counsel.
- Obtaining the assistance of independent experts, on leave of court.
- Obtaining the assistance of a lawyer for the child (Rule 5:8A) on leave of court.
- Such other matters as the guardian ad litem may request, on leave of court.
Who is a Guardian ad Litem? Who fits the job?
When hiring someone, you want to make sure that they are the right fit. Professionals appropriate to appoint as a Guardian ad Litem are an attorney, social worker, or mental health professional. It is important to hire someone who has worked with children to make your child feel comfortable and at ease. At this moment in time, when there is a shortage of mental health professionals, it might make sense to consider an attorney who has worked with children. To make the court process smoother, agreeing on a GAL before the court appoints someone might also be advantageous- this would allow you or your attorney to meet and interview the professional or to find a referral that would be a good match for your family. When deciding on a GAL, it is important to look for a neutral party, someone that both parties can agree on. This ensures the child will know that the GAL is not on anyone’s side except the child’s. Children are often told to pick, coerced into, or manipulated into choosing one parent’s side. Selecting someone both parties feel comfortable with is important or the judge will assign someone else because it could cause issues if one parent doesn’t feel at ease with the GAL.
Both mental health professionals and attorneys have rules of professional conduct. However, one advantage to choosing a lawyer is they must report to the court and be an officer for the court. Lawyers are trained to analyze a large amount of information and make recommendations to their clients- this could potentially make the process move quicker and smoother overall. However, lawyers have not earned a master’s in social work or a psychology degree so they cannot make any clinical diagnosis of family members. Lawyers can, and often do, recommend services, programs, and therapies.
Making sure that the GAL that you are hiring fits these requirements is important and can make everything easier for you, your ex, and, most importantly, your child. And speaking of hiring, who pays the GAL? The GAL fees will be part of the court order. Costs may be split between the parties. GAL fees are typically billed on an hourly basis.
Insights into the Role of the Guardian ad Litem
A Guardian ad Litem’s responsibility is to gather information to provide an insightful, informed recommendation to the court. A GAL acts as an independent fact finder and investigator. The GAL is someone the child can talk to about their situation and voice their concerns and wishes during that time. They will also meet with the parents as well as other important individuals such as stepparents or school personnel. A GAL may also review school and medical records.
Selecting a GAL to help with a custody or divorce case can decrease tension by allowing each party to have their voice heard, including ensuring that the child will know that they have someone to talk to without having to speak directly to a judge. A Guardian ad Litem is a great option to help the child and makes them feel more in control of their situation.