In cases where the parents are unable to reach an agreement, courts are faced with the daunting task of determining parental responsibility, a parenting plan and a time-sharing schedule. In establishing or modifying parenting and time-sharing plans, courts must consider the best interests of the minor child “by evaluating all factors affecting the welfare and interests of the particular minor child and the circumstances of that family,” including but not limited to the 20 factors set forth in Florida Statute §61.13. Although they are intimately affected in custody cases and their ultimate best interests are being determined by a virtual stranger, children are not parties to family law proceedings and may not be brought to court without prior order of the court, with the exception of an emergency or in the case of an uncontested adoption.
How can family law practitioners and family law courts ensure that children are heard and their well-being is given priority in adversarial proceedings? Court-appointed social investigators conduct social investigations and provide the court with a written study concerning relevant details relating to the children and parents. The majority of court-appointed investigators are licensed psychologists who conduct their investigations from their offices. Like the children at issue, court-appointed social investigators are not parties to the family law case.
The guardian ad litem is a party, has the right to address the court, and is an independent fact investigator in the trial court proceeding from the date of appointment until discharged. The guardian ad litem acts as the child’s next best friend and in the minor child’s interest. The guardian ad litem’s overriding consideration is the best interest of the child, even when it conflicts with the child’s desires.
In the last issue of Attorney at Law Magazine’s For the Greater Good, Judge David Gooding said, “It is often said that guardians ad litem are the ‘eyes and ears’ of the court.” As Judge Gooding has observed, guardians ad litem are expected to proactively advocate for the best interests of children every day. Unlike most licensed psychologist social investigators, guardians ad litem visit outside their offices visit with the children and other individuals.
A guardian ad litem may be appointed in an initial or modification proceeding involving a parenting plan, in cases with significant conflict between parents regarding children’s issues, and in cases where there are concerns regarding the children’s well-being. A guardian ad litem is required in family law cases of well-founded, verified allegations of abuse, abandonment, or neglect, as defined by Florida Statute §39.01. Florida Statutes §§61.401-405.
Once appointed, the GAL has a duty to review pending court file and files of potentially relevant judicial proceedings. The guardian ad litem must be provided with copies of all pleadings, notices, and other documents filed in the action and is entitled to reasonable notice before any action affecting the child is taken by parties, counsel or the court. After proper notice to parties, the GAL will interview the child, witnesses, and other persons concerning the welfare of child. The GAL may request the court to order expert examinations of the child, parents, and other interested parties, by doctors, dentists, and other health care providers including psychiatrists, psychologists, or other mental health professionals.
Through counsel, the GAL may file pleadings, motions, discovery, or petitions for relief as deemed appropriate or necessary in furtherance of the guardian’s function. The GAL may petition the court for an order allowing the GAL to inspect and copy records or documents related to the child, parents, other custodial persons, or household members. Through counsel the GAL is entitled to be present and participate in all depositions, hearings, and other proceedings and may compel the attendance of witnesses. The GAL must submit recommendations regarding any stipulation, or agreement, whether incidental, temporary, or permanent, which affects the interest or welfare of child within 10 days after the date such stipulation or agreement is served upon the GAL.
The GAL is required to file a written report, which may include recommendations and a statement of the child’s wishes. The report must be filed and served on the parties at least 20 days prior to the hearing unless waived by the court. Statutory and evidentiary rules apply as to hearsay contained in the GAL report.
The guardian ad litem must be an attorney in good standing, certified by the State GAL Program, or certified by a not-for-profit legal aid organization pursuant to background and training requirements set forth in Fla. Stat. 61.402. If there are well-founded allegations of abuse, abandonment or neglect, the GAL must be attorney in good standing or certified by the GAL Program. A qualified guardian ad litem is absolutely instrumental in a child’s voice being heard.