The Purpose and Role of a Guardian Ad Litem

The Purpose and Role of a Guardian Ad Litem

By:  Austin E. Williamson and Heather Rooney McBride

When parents go through a divorce or a custody battle, so do the kids.  In litigation, sometimes the parties are so absorbed in their own emotional hurts and needs that focus on their children is blurred; other times, parents involve the children as tools in litigation.  Often, both parties have opposing ideas as to what is in the best interests of the children.

 

At these times, a Guardian Ad Litem may be helpful to the parties and the Court.  A Missouri Guardian Ad Litem is an individual, normally a licensed attorney, who is appointed by the Court in a divorce, paternity, or custody modification case; his or her role in the case is to represent the best interests of the children involved.

 

RSMo 452.423 provides guidelines for both discretionary and mandatory appointments of a Guardian Ad Litem in domestic cases.  In all cases involving allegations of abuse or neglect of a child, the Court is required to appoint a Guardian Ad Litem. See RSMo 452.423.2. In other cases, the Court has discretion to appoint a Guardian Ad Litem if that appointment would assist the Court in a decision regarding the custody of or parenting time with the minor children.  See RSMo 452.423.1.  In either scenario, a Guardian Ad Litem plays a vital role in reviewing and recommending a parenting plan which provides for the physical custody, legal custody, and parenting time for the children.

 

An attorney must undergo specific and ongoing legal training to become and remain certified as a Guardian Ad Litem.  The standards required of a Guardian Ad Litem can be found in Appendix C of Missouri Supreme Court Rule 129.  Among other directives, Rule 129 provides that the Guardian Ad Litem shall provide not only factual information to the Court concerning the minor children and the parties, but shall also diligently advocate a position in the best interests of the children. The Guardian Ad Litem must be prepared to participate fully in any proceedings and may examine, cross examine, and subpoena witnesses, and may offer testimony.  When appropriate in order to represent the best interests of the children, the Guardian Ad Litem shall file petitions, motions, parenting plans, responses, and/or objections.  See Rule 129, Appendix C(4).

 

To determine the best interests of the children, the Guardian Ad Litem will speak with the parties as well as the children, if the children are of an age at which they can communicate well.  The Guardian Ad Litem may also communicate with any other person who might have relevant information concerning the parties or the minor children including, but not limited to, other family members, friends, teachers, doctors, daycare providers, and counselors.  The Guardian Ad Litem may also request and receive school records, medical reports, and any other documentation regarding the children.

 

After the Guardian Ad Litem has had an opportunity to complete an investigation, he or she will make a recommendation to the Court, including possibly informing the Court what the children’s opinions are concerning custody and parenting time.  While a Guardian Ad Litem’s opinion regarding the children’s best interests is not determinative, the Court will give the opinion significant weight, and often the Court will follow the Guardian Ad Litem’s recommendations.

A Guardian Ad Litem is typically paid for by the parties.  In most cases, the Court will order that both parties equally split the fees of the Guardian Ad Litem.  Just like the parties’ attorneys, the Guardian Ad Litem will charge an hourly rate (usually at a reduced rate) for his or her work on the case.

 

Parties should understand the impact a Guardian Ad Litem can have on a case and the importance of choosing the correct Guardian Ad Litem for a case.  If you would like to know more about whether a Guardian Ad Litem would be beneficial for your case, or if you are interested in speaking with legal counsel certified as a Guardian Ad Litem, contact Attorney Austin E. Williamson of Rooney McBride & Smith, LLC today to schedule a consultation.