The Role of the Guardian Ad Litem in a Custody Case

When a family court judge needs to decide how custody should be divided between two parents, that decision is made based on the best interest of the child standard. In the best interest of the child means the judge will decide what type of custody plan best encourages and fosters the child’s emotional and physical development and wellbeing. This standard determines the percentage of time a child spends with each parent, which parent or parents is responsible for legal decisions, and/or whether there should be a termination of parental rights.

In some child custody cases, the parents and their attorneys are able to negotiate a parenting agreement that they both agree on. A solid parenting agreement should address the following:

• • If custody will be shared between the parents or if one parent will be the primary caregiver
  • A co-parenting schedule that specifies which days each parent will have physical custody of the child
  • Holiday and special occasion schedule
  • How medical decisions for the child should be made
  • How education decisions for the child should be made
  • How communication between the parents and the child, as well as how communication should take place between the two parents

Unfortunately, there are many child custody cases where the parents cannot agree on custody or parenting plan. In these cases, the judge must make that decision based on the evidence that each parent presents to the Court. Many custody cases become quite contentious, with one or both parties trying to paint the other party in a bad light to try to convince the judge to rule in their favor and award them primary custody.

In order to ensure that they have unbiased and truthful evidence, the judge will appoint a guardian ad litem (GAL) who will investigate and present their findings and recommendations to the Court. The GAL’s investigation, report, and recommendations for custody are all made based on the best interest of the child standard.

In Rhode Island, a guardian ad litem must be one of the following:

• • An attorney who is licensed in the state of R.I. (for a minimum of two years) and has experience in child custody and family law issues and procedures.
  • A R.I. licensed clinical social worker, licensed marriage or family therapist, licensed psychologist, or licensed psychiatrist with a minimum of two years of relevant experience.

The person appointed should also be free of any conflict of interest with any of the parties involved in the case. For example, a licensed family therapist who may have worked with the family in the past could not be appointed GAL.

Duties of the GAL

The GAL’s report will provide the judge with a glimpse of the child’s home life, how each of the parents “parent,” and any other factors in the child’s life that should be considered when determining custody. As part of their investigation, the GAL will interview both parents to help gauge what type of homelife they will provide the child, what their parenting goals are, and how they plan to (or if they are able to) co-parent and foster the child’s relationship with the other parent.

The GAL will also interview other people in the child’s life, including family, friends, teachers, guidance counselors, therapists, and social workers. The GAL is given full access to the child’s school and medical records and – depending on the circumstances of the case – may also be given access to the parents’ medical records, as well.

The GAL will also speak with the child. This interview is done without either parents present. If the child is old enough, the GAL may also keep the child informed of any important developments in the custody case. In some custody cases, the judge may want the child to testify. The guardian ad litem will help prepare the child for this experience by explaining why the judge wants the child to testify, describe the process, and will often bring the child to the location where they are going to testify beforehand to help the child feel more comfortable.

Once the GAL has concluded all their interviews and examination of other evidence, he or she will prepare their report for the court. This report will include their recommendation as to how custody should be awarded and why. Although the final decision for custody is up to the family court judge, it is rare that that decision would not be what the GAL has recommended in their report.

GAL Fees

When the Court appoints the guardian ad litem, the GAL will let the all parties know what their retainer and hourly rate are. The judge will determine and enter and order to address what each parent’s financial responsibility will be for the GAL’s fee.

Are You Involved in a Child Custody Battle?

If you are gearing up for a child custody fight, you need a seasoned Rhode Island child custody attorney who will aggressively advocate for you and your child.

Contact Kirshenbaum Law Associates at 401-467-5300 for a confidential consultation.