In many child custody cases and divorces involving children, where there is substantial disagreement about the proposed custody arrangement, the judge will appoint an independent lawyer known as a guardian ad litem.
A guardian ad litem (GAL) is a lawyer appointed by a court in Missouri in any family law matter, whose role is to investigate the family situation in order to determine what is in the best interests of the child or children involved. A GAL does not exactly represent a child and is not required to follow ethical legal rules to advocate for the child’s wishes if the child desires a situation that is not in their best interests. Also, the communications between a child and a GAL are not bound by the attorney-client privilege. Even though they may perform similar actions, GALs are not social workers nor are they mediators who resolve disputes between parties.
A guardian ad litem (GAL) can become involved in a case in one of two ways. A judge, on their own initiative, can determine a GAL is needed in any particular case and appoint one at any time. So this way a judge can choose the GAL of their choice. Alternatively, either party to the case can submit a motion for appointment of a GAL to the court. Here, each party can suggest several GALs they know and likely have worked with before and are comfortable with in an attempt to mutually agree upon a particular GAL. If the parties cannot agree which GAL to appoint, the judge will make the decision.
The appointment of a GAL in Missouri is guided by Missouri State Statute 452.423. “In all proceedings for child custody or for dissolution of marriage or legal separation where custody, visitation, or support of a child is a contested issue, the court may appoint a guardian ad litem.” Further, “[t]he court shall appoint a guardian ad litem in any proceeding in which child abuse or neglect is alleged.” So when abuse or neglect is suspected, the judge is required to appoint a guardian ad litem.
Once appointed to a case by the court, a GAL will usually begin by researching the pleadings, then conduct in-person interviews with both parents and typically the child or children involved. The GAL may also interview other adults, such as grandparents, who contribute to the wellbeing of the child. GALs can obtain evidence in the case, can examine and cross examine witnesses in the case, can subpoena witnesses, and offer their own testimony in legal proceedings. A GAL typically has wide discretion in their role to ensure the best interests of the child are met.
The Supreme Court of the state of Missouri developed, adopted and implemented universal standards for GALs. The following are the specific requirements for a lawyer in Missouri to legally practice as a Guardian ad Litem.
· An actively practicing and licensed lawyer in Missouri
· Must complete an 8-hour training session that conforms to the Supreme Court of Missouri Standards with Comments for Guardians ad Litem in Juvenile and Family Court Division Matters. In subsequent years the lawyer must take a 3-hour continuing education course to retain their GAL status.
· Must focus on the best interest of the child (instead of the child’s wishes or the wishes of another party)
· Should meet with the child and the people in the child’s life (ie. teachers, physicians, siblings, relatives, Court Appointed Special Advocate volunteers, etc.)
· Must attend hearings and participate in court meetings and case-related activities, and develop and negotiate with the parties a proposed parenting plan
· Inform the child regarding updates and developments in the legal case at hand
· A GAL shall have unimpeded access to all the child’s reports and records that pertain to the case
· A GAL shall recommend to the court what is in the child’s best interest based on their findings.
Below are the circumstances which a GAL may be appointed based on motion by either party or at the judge’s discretion (left), and the circumstances in which it is mandatory a GAL is appointed (right).
Discretionary Appointment | Mandatory Appointment |
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From a financial point of view, it is wise for the parties to work together and attempt to resolve child custody issues themselves rather than having the court decide these issues. When a GAL is appointed, the cost of the GAL’s services is (usually) split between both parents equally. A GAL bills their hourly services just like a regular lawyer and their cost can become significant, just like your divorce lawyer. As with the cost of your family law attorney’s fees, the more arguments and other issues regarding child custody the GAL has to investigate and resolve, the more their fees will be. If the parties do not pay the GAL for their services, the court will allow the GAL to motion to the court for a financial judgment against both parties in the amount of the outstanding fees.
It is not uncommon for a Guardian ad Litem to be appointed in family law cases where child custody is disputed. If a GAL is appointed in your case, keep in mind this is normal. It is best to be honest with the GAL in your communications with them, and always treat them with respect. Studies show judges often take the findings of a GAL under strong consideration when making custody determinations. The Men’s Center for Domestic Resolution is a family law firm dedicated to helping men experiencing the turmoil of a child custody dispute or a divorce. If you are facing a divorce or child custody legal dispute, please call our office at 816-287-1530 to schedule a consultation.
The Men’s Center for Domestic Resolution is a Cass County family law firm located in Pleasant Hill, Missouri.
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