Guardian Ad Litem: The Difference Between Winning And Losing

What To Do When The Guardian Ad Litem Is Not Doing A Thorough Job

Those that have been involved in custody litigation are probably aware of the important role that a Guardian ad Litem (GAL) can play in the outcome.  In fact, when both parties otherwise appear suitable, the GAL’s report can sometimes be the tie-breaker for the Judge or Magistrate hearing the case.  The input from the Guardian ad Litem is usually taken very seriously by the Court due to the fact it is thought to come from someone that is in a neutral position, has only the best interests of the children in mind, and has almost unfettered access to relevant information, such as the home life of both parents, the children’s school teachers and counselors as well as other important persons.  In short, having a favorable Guardian ad Litem report can be the difference between winning and losing.

But, what is a party supposed to do when they do not feel the Guardian ad Litem put forth sufficient time and effort to make an informed recommendation to the Court?  Like every other profession, there are really good GALs and there are some pretty lazy ones as well.  As a practitioner in both domestic relations and juvenile courts, I know first-hand that some GALs put in the minimum effort to gather information and draft their report and recommendation to the Court, even though their opinion is extremely important to the ultimate decision.  This frustrates attorneys and clients alike.  Sure we can put the Guardian ad Litem on the stand and try to minimize the importance of their opinion in the court’s eyes by attacking the GAL’s credibility.

However, if the case still goes sideways, the Guardian ad Litem report will remain as part of the record for the appellate court to see; and the trial court is given great latitude to evaluate the credibility of all witnesses, including the Guardian ad Litem.  Therefore, if the trial Court gives weight to the GAL’s opinion, notwithstanding attacks on his or her thoroughness, the appellate court likely won’t disturb that finding.  It would certainly be better to have the lazy GAL’s report not considered at all rather than trying to show the court why it should put little, if any, credence on his or her recommendation.  Is there a way to force the trial court to disregard the Guardian ad Litem altogether?

The answer is “maybe.”  By making a record and objecting to the trial court utilizing any report or testimony of an uninformed Guardian ad Litem, a party may be able to show the appellate court that the trial court “abused its discretion.” In a somewhat recent decision out of the 4th district court of appeals, there is now appellate language indicating that if the Guardian ad Litem did not do a sufficient job of investigation, according to the state-wide standards for GALs enacted by the Supreme Court of Ohio in Superintendence Rule 48, a party can move to strike the Guardian ad Litem report and recommendation from the record, effectively nullifying the adverse recommendation altogether.

While litigants have always had the right to move the trial court to strike a GAL’s report and recommendation, based upon general notions of bias or incompleteness, this appellate opinion evaluated the GAL’s efforts against the requirements of Superintendence Rule 48.

In Nolan v. Nolan, 2012 Ohio 3736 (2012), the appellate court went into detail about the rule governing the specific tasks that a Guardian ad Litem is supposed to do as part of their assignment and determined that if the Guardian ad Litem falls well below the minimum standards of Rule 48, it may be an abuse of discretion for the trial court to consider the GAL’s report and testimony.  This is a big win for those of us that feel that a Guardian ad Litem is very useful in the resolution of custody disputes, but only when the Guardian ad Litem does a competent, thorough job; when the Guardian ad Litem is not diligent in the investigatory stages of the case, his or her recommendation is something less than an educated guess as to what is in the children’s best interest.

The Nolan Court was quick to point out, however, that the Rules of Superintendence do not carry the force of law and do not create any substantive rights in individuals but “are general guidelines for the conduct of courts.”  Nonetheless, with the advent of these guidelines, at least trial courts have some objective standard to hang their hat on when deciding that a GAL’s report and/or testimony should be discarded.  In other words, prior to the promulgation of Rule 48, there was nothing that specifically delineated the tasks a Guardian ad Litem was required to do; and it was very difficult to show an appellate court that the trial court abused its discretion in considering a substandard GAL’s position.  Now that there is a rule listing these minimum standards, attorneys can put the pressure on trial courts to strike the GAL’s report and testimony by pointing to the tasks the Guardian ad Litem failed to undertake.

So, what are the minimum standards prescribed by Rule 48?  Here is what the rule states, in part:  “A guardian ad litem shall make reasonable efforts to become informed about the facts of the case and to contact all parties. In order to provide the court with relevant information and an informed recommendation as to the child’s best interest, a guardian ad litem shall, at a minimum, do the following, unless impracticable or inadvisable because of the age of the child or the specific circumstances of a particular case:

1. Meet with and interview the child and observe the child with each parent, foster parent, guardian or physical custodian and conduct at least one interview with the child   where none of these individuals is present;
2. Visit the child at his or her residence in accordance with any standards established by the court in which the guardian ad litem is appointed;
3. Ascertain the wishes of the child;
4. Meet with and interview the parties, foster parents and other significant individuals who may have relevant knowledge regarding the issues of the case;
5. Review pleadings and other relevant court documents in the case in which the guardian ad litem is appointed;
6. Review criminal, civil, educational and administrative records pertaining to the child and, if appropriate, to the child’s family or to other parties in the case;
7. Interview school personnel, medical and mental health providers, child protective services workers and relevant court personnel and obtain copies of relevant records;
8. Recommend that the court order psychological evaluations, mental health and/or substance abuse assessments, or other evaluations or tests of the parties as the guardian   ad litem deems necessary or helpful to the court; and
9. Perform any other investigation necessary to make an informed recommendation regarding the best interest of the child.”

When The Guardian ad Litem Fails

In summary, if the Guardian ad Litem failed to perform some or most of the above-listed tasks, then your attorney should move the court to exclude the testimony and recommendation as not being competent or credible evidence in the ultimate decision.  If you do not prevail, you will have an argument on appeal that the trial court abused its discretion in not granting your motion. For more information about Superintendence Rule 48, click to read an article titled A Dramatic New Guardian Ad Litem Rule in Ohio we posted in June of 2009.

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