If you have been involved in a divorce with children, or a child custody battle, you may have heard the term Guardian Ad Litem (“GAL”) mentioned. Perhaps your ex-spouse requested the court appoint one in your child custody dispute. Or maybe the court has ordered the appointment of GAL in your case on its own. In this article, we are going to briefly explore:
- What is a Guardian Ad Litem?
- What is the Guardian Ad Litem’s role in Indiana?
- When is a Guardian Ad Litem appointed?
- Who pays for the Guardian Ad Litem?
- Whose side is the Guardian Ad Litem on?
- The Guardian Ad Litem’s Report; and
- The Guardian Ad Litem in the courtroom.
What is a Guardian Ad Litem?
Indiana Code 31-9-2-50 defines a Guardian Ad Litem as “a volunteer . . . who is appointed by a court to represent and protect the best interests of a child; and provide the child with services requested by the court, including researching; examining; advocating; facilitating; and monitoring the child’s situation.” In simplest terms, a GAL is a person a court will appoint to investigate and represent the best interests of a child in various types of cases.
Often, the Guardian Ad Litem is a neutral attorney who is not involved in the case, but you do not have to be an attorney to be a Guardian Ad Litem. Sometimes Guardian Ad Litems are social workers, but really, they can hold any job. Whether an attorney or not, the Guardian Ad Litem must undergo special training required by Indiana law to become, and act as, a GAL. This includes training in identifying and treating child abuse, as well as training in different stages of childhood development.
What is the Guardian Ad Litem’s role in Indiana?
Again, a Guardian Ad Litem’s role is to represent and protect the best interests of the child. This may mean different things in different cases, but most likely, once appointed by the Court to represent the interests of a child in a case, the Guardian Ad Litem will begin by researching and investigating the child’s situation. In a divorce or paternity case where custody is disputed, the Guardian Ad litem will likely conduct home visits to both parents’ homes to investigate the living conditions.
In conducting their investigation, the GAL may interview the child, siblings, parents, friends of the parents, stepparents, neighbors, family members, teachers, principals, guidance counselors, doctors, psychiatrists, etc. Really anyone the GAL thinks has relevant information regarding the child’s best interests.
The Guardian Ad Litem may also review the child’s school records as well as medical records. Sometimes, the GAL will review tapes of phones calls between the child and parent, emails, or text messages between the parent. The scope of information they can view is broad. All this information is then usually compiled into a Report, which is then filed with the Court. These can be short or long, depending on the situation. I have seen them reach a few hundred pages.
It is important that you never interfere with a Guardian Ad Litem’s investigation. This will only hurt your chances in court and may subject you to contempt of court. Always respond to their requests for information promptly and be pleasant, despite the difficult circumstances you are likely facing.
When is a Guardian Ad Litem Appointed in Indiana?
Well, it depends. Sometimes, during a divorce, paternity proceeding, grandparent visitation, adoption, juvenile delinquency, or guardianship proceeding, a court may appoint a Guardian Ad Litem for a child on its own. This usually only happens when custody or parenting time is being contested or there are allegations of abuse, neglect. A GAL may also be appointed by the Court when one party files for a disputed change of custody. Other times, one or both parties, or their lawyers, request the Court appoint a Guardian Ad Litem when custody or parenting time is being disputed. A GAL can even be appointed on the request of the child, a custody evaluator, or a mental health professional.
But just because a party requests a Guardian Ad Litem does not mean one will be appointed. Whether you are for, or against, a GAL being appointed to your case, in Indiana, judges can use their discretion about when to appoint a GAL. The appointment of Guardian Ad Litem is only mandatory in the very specific situations where one party is claiming a child born during marriage is not legitimate and in specific types of guardianship actions. Both of those exceptions are beyond the scope of this article.
Who pays for the Guardian Ad Litem in Indiana?
Indiana law allows the trial court to assess the Guardian Ad Litem’s fee against one or both child’s parents. The fees vary from county to county. Some counties, such as Hamilton County, Indiana, have programs that are funded by the county or grants that will pay for the GAL. But even in those counties, the parties may be required to reimburse the Guardian Ad Litem for their work. Or the Court can require the parties to pay a user fee.
Whose side is the Guardian Ad Litem on?
The child’s side. Again, the Guardian Ad Litem’s role is to represent and protect the best interests of the child. I’ve said it a few times, but parties always seem to forget this fact. In cases where child custody is being disputed, and both parents are fighting over the child – levelling all sorts of accusations against each other – the court may have difficulty sorting out the truth in the matter. The Guardian Ad Litem represents an alternative to the court, as the GAL should be a neutral with only the child’s best interest in mind. Because they are neutral and represent the child’s best interest, and the standard for determining who gets custody is “what is in the child’s best interests?”, Indiana Courts tend to rely heavily on the findings and recommendations of the GAL.
Sometimes, the Guardian Ad Litem’s findings and recommendations will favor the Father completely and it will feel like the GAL is supporting the Father. Other times, you may feel the Guardian Ad Litem’s finding and recommendations support the Mother completely. Most times though, the GAL’s Report points out wrong and right things both parents are doing regarding the child’s best interests. Either way, the Guardian Ad Litem, and their attorney (if one), are not your attorneys and they do not represent you. Your positions may be aligned, but don’t mistake them for your counsel or rely on them to make your case for you.
The Guardian Ad Litem’s Report
After completing their investigation, the Guardian Ad Litem will often compile a Report summarizing all the evidence they gathered in investigating the circumstances regarding the child’s best interests. The Report may conclude with “Summary” and “Recommendations” sections containing the GAL’s conclusions and recommendations to the Court. The Court is not bound by these recommendations, but Courts tend to give them a lot of weight.
Reading the completed Guardian Ad Litem Report can be difficult for a lot of parents. Not only is it difficult to hear what the other parent says about your parenting, but seeing the statements from your children, friends, family, teachers, doctors, etc. may be difficult as well. You may very well disagree with many of the statements or opinions contained in the GAL’s Report. You will have the opportunity to address the evidence and findings of the GAL’s Report at a hearing.
Young children are often open books and they will openly share their feelings with GALs when they feel safe. And despite being young, you probably know that children are highly perceptive. Never get angry with your child about something you see in a Guardian Ad Litem Report and never coach your children about what to say prior to meeting with a GAL. The GAL will note in the report if they believe a child was coached and can easily see through coached statements.
Once completed, Indiana law allows a Guardian Ad Litem’s Report to be received into evidence and not be excluded on the grounds that the report is hearsay or otherwise incompetent. However, as mentioned above, any party to the proceeding may call the GAL, as well as any person whom the GAL consulted with for the Report, to the stand for cross examination.
The Guardian Ad Litem in the Courtroom
In Indiana, the Guardian Ad Litem is considered an officer of the court for the purpose of representing the child’s interests. Moreover, Indiana Courts have held that the Guardian Ad Litem is a party to the proceedings. This means, the GAL can file motions and participate in hearings independent of either parent. So, at a hearing, a Guardian Ad Litem may subpoena their own witnesses and present evidence regarding the supervision of the action, or any investigation and report that the court requires of the GAL.
In addition, even though the Guardian Ad Litem is often an attorney themselves, a GAL may be represented by an attorney. So, at a hearing, the GAL’s attorney can object and make legal arguments just like the parents or their counsel.
Discuss your Case with an Indiana Family Law Attorney
So now you know a little bit about Guardian Ad Litems in Indiana and their role in your case. The inclusion of a GAL in your case may complicate issues for you, especially if the GAL’s findings and recommendations are not in your favor. In that case, you may need to vigorously cross examine the Guardian Ad Litem at the hearing regarding the findings contained in their Report, object to the Report being entered into evidence, or move to exclude the Report if warranted. If the GAL’s Report is favorable to you, you want to make sure it gets entered into evidence and highlight the findings and recommendations which were in your favor with other testimony or evidence.
Each case is very fact specific and you should discuss your case and legal strategy with an Indiana Family Law Attorney who understands these issues, the Indiana Rules of Trial Procedure, and the Indiana Rules of Evidence. Lawyers are in the business of persuasion and we are trained to advocate for our clients by articulating to the Court the law and our client’s positions in a way that clients often cannot do for themselves, even with the proper knowledge.