Keeping perspective during divorce can be challenging, especially when parents are fighting over child custody. Sometimes, when parents get very angry with one another, they may inadvertently say and do things that negatively impact their kids. In this situation, a California family court may determine that a Guardian ad Litem (minor’s counsel) needs to be appointed to provide the court with insight into the child’s situation. If you have a disputed California custody matter involving a Guardian ad Litem, you will want to know: What is the role of a Guardian ad Litem in a California child custody case?
What is a Guardian ad Litem?
A Guardian ad Litem (GAL) is a person appointed to look out for another person’s best interest during a legal matter. In California, GALs who are appointed to children under 18 are often called minor’s counsel. A minor’s counsel or GAL is an attorney who will perform various tasks throughout a child custody case to help the court understand a child’s circumstances and determine what is in their best interest. GALs can be appointed in other cases as well.
When Will a Court Appoint a Guardian ad Litem (Minor’s Counsel)?
Child custody disputes can be highly contentious. While not every child custody matter will involve a GAL or minor’s counsel, there can be times when a judge will determine that the appointment is necessary. When will a court appoint a GAL (Minor’s Counsel)?
There are numerous factors the judge can consider when deciding whether or not to appoint a minor’s counsel, such as:
- The degree of stress the parents’ conflict is placing on the child,
- If there is relevant information regarding the child’s life that the minor’s counsel appointment may help illicit that might not otherwise be presented or made available,
- If there is physical, emotional, or sexual abuse or neglect of the child,
- If it’s possible that one or both parents can’t provide a safe, stable, and secure environment for their child,
- If there is counsel available who understands the issues concerning the child and their needs,
- If a GAL or minor’s counsel is needed to determine the child’s best interest.
Who Can Request the Appointment of a Minor’s Counsel?
The court can appoint a minor’s counsel on its own. Additionally, either party can request that a minor’s counsel be appointed to represent a child’s best interest.
Once appointed, the minor’s counsel will be responsible for investigating the case, presenting information, and making recommendations.
What does a Minor’s Counsel Investigate?
When a minor’s counsel is appointed, they will complete multiple tasks. Ordinarily, the first thing a minor’s counsel will do is interview the people involved in the case. This usually includes the child, their parents, their siblings, and other adults in the child’s life who may be able to offer insight. Those people outside the immediate family who may be interviewed often include:
- Friends of the Family,
- Extended Family,
- Child Therapists,
- Family Therapists,
- School Counselors, and
- Anyone else who may know the child and have relevant information.
The minor’s counsel’s responsibilities also include “reviewing the court files and all accessible, relevant records available to both parties.” This means that the minor’s counsel will look at all of the legal documents in the case and any reports, such as those from therapists, the child’s school, and others that pertain to the child and their well-being.
What does a GAL Consider During Their Investigation?
The GAL’s investigation is meant to find out relevant information about the child and their parents to assist the court in making custodial decisions that will be in the child’s best interest.
A child’s GAL may consider factors such as:
- The child’s age and emotional maturity,
- The child’s wishes and preferences,
- The parent’s wishes and preferences,
- The child’s physical, medical, developmental, and educational needs, and
- Any other factors that relate to the child’s well-being.
What are the GAL’s Rights?
According to California law, appointed minor’s counsel will have the following rights:
- Reasonable access to the child,
- Legal standing to seek affirmative relief on behalf of the child,
- To notice of hearings and requests for examinations affecting the child,
- To file pleadings, object to evidence, and participate in hearings, settlement conferences, trials, appeals, and arbitrations,
- To have access to the child’s school, educational, medical, dental, mental health, and other health care records.
- To interview caretakers, school personnel, mental health professionals, and others who have assessed the child or provided the child with care.
- To interview mediators. However, mediation discussions will remain confidential. Additionally, by law, the mediator has the authority and discretion to exclude counsel from participation in the mediation proceedings.
- To receive advance notice of and the right to refuse any physical or psychological examination, being scheduled for the purpose of the proceeding, and that the court has not ordered.
- To assert or waive privilege on the child’s behalf.
- To seek an “independent psychological or physical examination or evaluation of the child for purposes of the pending proceeding, upon approval by the court.”
How Involved will the GAL be During My Case?
When a judge assigns a GAL to a child custody case, it is usually because there is a concern regarding a child’s well-being. The GAL is there to give the court the information it needs to make choices that are in the child’s best interest. As such, the appointed minor’s counsel will be involved in almost every aspect of the case until it is over.
Who Pays for the GAL?
Generally, the parties are responsible for paying the GAL’s fees. However, these fees will range according to how much work the appointed person performs. As with most legal expenses during a child custody case, the more parents fight, the more active the case will be, and the more they will have to pay for the GAL’s services.
Does the Court Have to Follow the GAL’s Recommendations?
The GAL’s job is to gather information and make recommendations to the court. Often, the court relies on the GAL to provide accurate details and well-thought-out suggestions on the provisions that would most benefit the child. In many cases, the court’s final custody rulings will be the same or similar to the GAL’s recommendations. However, the court is not bound by the GAL’s opinions and has the discretion to order different child custody terms.
The attorneys at the Law Offices of Judy L. Burger are experienced California family law attorneys who can help with all aspects of your child custody case. We have experience with child custody cases that involve GALs and can help. We assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities. Call us at 415-293-8314 to schedule a private appointment or visit our website.