| What is a guardian ad litem?
When divorcing parents disagree about custody or visitation, the court will generally appoint a guardian ad litem, or "GAL," to represent the interests of the children and report to the court as to what arrangements would serve them best. The same procedure applies when unmarried parents appear in court with similar disputes. In New Hampshire, GALs are individuals who have been approved by the courts and completed a special training program. Usually they are attorneys, but sometimes they are psychologists, social workers, or others. When is a GAL appointed? In a divorce or similar case, a judge or master may appoint a GAL whenever an issue arises that affects a child's welfare or custody. In a post-divorce custodial dispute, the court will appoint a GAL to learn if there has been "repeated, intentional, and unwarranted" interference with visitation or custodial rights or if there is a strong possibility of harm to the child, either of which which might create a basis for a change in custody under RSA 458:17 V (a). GAL appointments are most often made at the time of the temporary hearing. A GAL's Order of Appointment will identify the issues he or she should investigate, which may be based on specific requests by the parents and their attorneys or on issues identified by the judge or master. GAL investigations may cover questions of legal custody, physical custody, visitation schedules (including arrangements for pickups and drop-offs), parenting skills, bonds between children and parents, abuse of alcohol or drugs, the influence of a new boyfriend or girlfriend, and the like (RSA 458:17-a). While the court may appoint a guardian ad litem upon request of the parties or on its own initiative, either way the parties are required to pay for the GAL's services (RSA 458:17-a). The court will determine the amount each party must contribute; typically each parent pays half. If one or both of the parents are indigent, their share may be paid from a fund administered by the court. Court-paid GAL fees are subject to a cap of $500 per party. Privately paid fees are often exempt from the cap and frequently total $1,500 to $2,500. What does a GAL do? Each guardian ad litem is required to submit a report stating findings and recommendations to the court. To meet this responsibility, a GAL must first conduct an investigation which may involve not only the child and the family, but also others who have contact with them, such as physicians, teachers, and babysitters. GALs have the right to review medical and counseling records of children (and sometimes the parents), to review children's school records, and to interview anyone with an interest in the children's custody, visitation, maintenance or education. The GAL will typically meet with children and one parent at a time and visit the home of each parent to observe interactions. Although the GAL is not required to interview everyone who may be relevant to the matter, the parties are entitled to a minimum expectation that the GAL will interview both parents and each child. Who gets the GAL's report? Even if a GAL happens to be an attorney, when acting as a GAL he or she is a party to the proceeding and not the child's attorney. Therefore attorney-client privilege-which generally forbids an attorney to reveal communications with clients-does not apply to communications between GALs and children or others from whom they may gather information. Ross v. Gadwah, 131 N.H. 391, 395 (1988). This means parents, typically through their attorneys, can review a GAL's entire file and challenge anything in it, including information that came from the children. On the other hand, courts treat GAL reports as confidential and will not release them to anyone who does not have a direct interest in the case. Is the GAL's word final? While the role of guardian ad litem is valued by the courts, their recommendations are not binding. "Recommendations of the guardian ad litem do not, and should not, carry any greater presumptive weight than the other evidence in the case. The guardian ad litem is appointed to represent the best interests of the child, not to make a conclusive or presumptive determination; that is the province of the court or master." Richelson v. Richelson, 130 N.H. 137, 143 (1987). As a practical matter, the Court will follow the GAL's recommendations at least 90 percent of the time. Often, once the parties receive the GAL's report, they try to settle the case along lines suggested by the GAL's recommendations. Should I ask for a GAL? It is not possible to say in advance whether a guardian ad litem will be appropriate for any particular type of case. An attorney experienced in family law can generally answer this question based on the facts and issues of a specific case, and can assist in the selection of a GAL if one is necessary. Further, such an attorney can offer valuable counsel on how to manage interactions with the GAL and what information will most likely help the GAL get a complete and accurate picture of the case. - - Family Law Office of Amy G. Wolfson |