When couples with children go through a divorce settlement, everyone–including the courts–hope that mutual agreement can be found on the matter of child custody. That is not always the case though, and there are times when another perspective needs to be heard. That would be the perspective of the kids.
One way that is done is the appointment of a guardian ad litem. Parents faced with their kids having what appears to be their own lawyer will no doubt ask themselves what a guardian litem is and what they do.
A guardian ad litem represents the interests of the child. A licensed attorney in their own right, the guardian ad litem is not obligated to present the child’s opinion as their own. What the guardian ad litem does do is investigate with their eye exclusively on the child’s best interests.
It should be noted that guardian ad litems can function in other roles. They may also be appointed to represent a mentally incapacitated person. The advocacy of a guardian ad litem on behalf of children need not solely be in matters of custody. But child custody is a common way the guardian ad litem is utilized, and it is that role which will be our focus here.
Why Is a Guardian Ad Litem Necessary?
The state of Colorado refers to a guardian ad litem as the “Court’s unbiased eyes and ears. In the eyes of the court, the two disputing parties (spouses in the case of child custody) are focused on “developing those facts which aid their position” whereas the guardian ad litem will presumably engage in a “disinterested fact-finding function”. Please note in this context that “disinterest” does not mean a lack of interest in the case, but lack of partiality towards either side.
In a custody dispute, the spouses may have some bad feelings towards each other, and those feelings can be specifically about the other’s quality as a parent. The spouse’s attorneys have a professional obligation to represent the view of their client. That is what the courts mean when they express a desire for a fresh set of eyes and ears.
How the Guardian Ad Litem Investigates
The guardian ad litem, drawn from a list of lawyers maintained by the state and paid for by the state, goes to work at finding out the dynamics of the child’s life. They will certainly speak to the child. They will talk to both parents. The guardian ad litem will likely reach out to everyone from teachers to counselors to the leaders of the kids’ extracurricular activities. The task is to find out how the best interests of the child will be served in the custody and visitation settlement.
Let’s say the reason the spouses are at odds is that one believes the other is verbally abusive towards the child. The accused parent sees themselves as simply being a disciplinarian. The guardian ad litem is a way for the child to have a voice. Talking to people outside the family can also help give the guardian ad litem a realistic view of the situation.
Or perhaps one spouse is accusing the other of being too lax, of letting the child stay up too late and not providing a proper diet. The accused spouse believes the other is being too strict. Is this just a case of reasonable differences in approach, or is one parent genuinely unfit? The guardian ad litem will perform their due diligence and have a recommendation for the court.
It is worth re-emphasizing that even though a guardian ad litem can be referred to casually as “the child’s attorney”, that is really not the case. An attorney is obligated to follow the wishes of their client. The guardian ad litem is not obligated to take direction from the child, but they will listen very seriously to the child’s wishes.
For example, maybe the guardian ad litem will win the child’s trust and get them to open up about what really is verbal abuse. In this case, the child’s wishes and the guardian ad litem’s recommendation may be aligned.
Another example, on the opposite end of the spectrum, is where the child wants to stay with the parent who lets them stay up late and eat junk food for dinner. The guardian ad litem’s investigation has revealed that this type of living goes well beyond reasonable differences in parenting approach. The guardian ad litem knows that the parent who serves vegetables and enforces bedtimes is the one who is providing for the best interests of the child. And it is that view, not the child's, which the guardian ad litem will present to the court.
The Guardian Ad Litem in Court
The guardian ad litem will present their findings in the form of reports. While the attorneys for the parents can challenge the findings, the guardian ad litem is not subject to direct questioning–they are a lawyer not a witness. After digesting the reports and hearing any parental challenges, the judge can make a final decision with more complete information.
When a guardian ad litem becomes involved in your child custody case, it can cause apprehension with the parents. Your own lawyer needs to advise you on how best to cooperate with the guardian ad litem’s investigation. Child custody battles are often painful for everyone involved. That is why, at the Law Office of Alexandra White, PC, we know how important it is to bring both a detailed and nuanced understanding of family law and a strong personal empathy to our clients. Call us today at (303) 647-4245 or contact us online to set up an initial consultation.