What is a Guardian ad Litem?
A guardian ad litem (GAL) is a person appointed by the Court to the protect the interests of a minor child or other individuals the law considers incompetent. In domestic relations cases that involve allegations of child abuse or high levels of conflict, an appointed GAL serves to help the court determine a child’s best interest by conducting an independent investigation and writing recommendations. GALs should have specialized skill and training in the following areas:
- Identification of any abuse and neglect issues
- Factorial analysis of the best interest of the child factors
- Determining the strengths and weaknesses within the familial relationships of the child
- Evaluation of peer relationships of the child
- Evaluation of relevant mental health, medical, and school records of the child
- Understanding and knowledge of all applicable statutes, court rules, case law, and behavioral science literature
- A firm grasp of the particular facts of the case
- Negotiation and mediation skills
- A firm grasp of family and domestic violence issues from the perspective of the law and relevant behavioral science literature
- Knowledge of community services and resources
- Child development psychology
- Guardian ad litem ethical standards
Many jurisdictions specifically permit family courts to appoint GALs to assist the court in determining the child’s best interests and note that a guardian ad litem does not need to be an attorney. In fact, where a child’s best interests need to be determined within a family system that has severe underlying psychological issues, lawyer-guardian ad litems are often not adequately trained to understand or opine on these issues. Lawyer-guardian ad litems are best utilized in tandem with a properly training forensic mental health professional guardian ad litem so that the two distinct roles of (1) the child’s guardian ad litem and (2) the child’s lawyer operate independently.
In many domestic relations cases that arise within the context of a high conflict custody matter, the appointment of a forensic mental health professional as guardian ad litem is preferable to the appointment of a lawyer-guardian ad litem. Behavioral science studies suggest that a lawyer-guardian ad litem is often less equipped to understand the psychological needs of the children they represent than a properly trained forensic mental health professional.
This is especially true concerning the common task of performing a factorial analysis of the best interests of the child following observations of the child’s interactions with each parent within the family system. The task of rendering behavioral science opinions concerning the bonding and attachment a child has with each parent most often falls outside of the scope of a lawyer’s competence. Having a lawyer-guardian ad litem render such opinions may lead to erroneous fact finding and/or negatively impact the child’s best interests.
For those reasons, PsychLaw recommends a qualified and properly trained forensic mental health professional be appointed as guardian ad litem, as opposed to a lawyer-guardian ad litem, in any high conflict domestic relations case where it could assist the trier of fact in determining a child’s best interests.
