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Guardianship

Guardians ad Litem – A Trap for the Unwary

When there are minor children of the marriage and timesharing is in dispute, a party may request appointment of a Guardian ad Litem (“GAL”) to conduct an investigation and provide a report to the court.  Florida Statute 61.403 states that a guardian ad litem, when appointed, shall act as next best friend of the child, investigator or evaluator, not as attorney or advocate, but shall act in the child’s best interests.  Guardians ad litem and in our experience, become the judge, jury and executioner.  Once a guardian ad litem is appointed the game changes.  The judge, for all intents and purposes, has abdicated his or her role as the judge of the facts to the guardian.  If the lawyer who is asking for the guardian ad litem has any say in who is selected to play that role, good luck to you.  Your case is about 90% on the way to being sunk.  Without doubt, while the guardian ad litem statute has good intentions, in use the reality is that often the guardian will be swayed by the hiring lawyer’s and his/her client’s views and that’s how it goes.  Not good.

A guardian ad litem may investigate allegations made by one parent that affect the child, may interview the child – something neither lawyer for the parties ever should do – witnesses or anyone else that might have information concerning the welfare of the child.  If it sounds like the guardian ad litem can go on his own witch hunt, that’s exactly correct.  The guardian ad litem can get at medical records and seek to inspect any records which relate to the minor child.  The guardian ad litem may ask the court to order expert examinations of the child, the child’s parents or other interested parties in the action, by medical doctors, dentists and other health care providers including psychiatrists, psychologists or other mental health professionals.

Imagine that.  The guardian can ask the court to have you examined by a psychiatrist.  Your child.  Or other interested persons, whoever they may be.  The guardian ad litem may ask to be represented by a lawyer, since the guardian ad litem, although likely a lawyer, is prohibited by the statute from representing the minor child in the proceedings.

Ultimately, the guardian ad litem will write the dreaded report.  That report may include recommendations and a statement of the wishes of the child. The report must be filed and served on all parties at least 20 days prior to the hearing at which it will be presented unless the court waives such time limit.

Okay, so the deck is stacked against you.  Guardian ad litem is buddies with opposing counsel, who is guiding the guardian ad litem.  A hearing is set on an important matter, such as timesharing or parental relocation and the court needs to determine what is in the child’s best interests.  The court does not want to waste its precious time to hear from the witnesses directly…no, why waste time.  The guardian ad litem has already done it.  Even written a report.  The statute says you must have the report within 20 days of the hearing.  Due process, right?  Notice and an opportunity to be heard, right?  Unless the court waives such time frame?  Whaaaaaat?  Say it ain’t so.

The hearing day arrives, hearing starts and the guardian ad litem, usually sitting on the side of the table as opposing counsel, presents his/her report.  Report is not favorable to your client.  Surprise, surprise.  Judge reads the report, likely starting at the end with the recommendations of the guardian ad litem.  You get the drift.  Uphill battle all the way.  Now you know what it must feel like being a salmon swimming upstream to mate and die.

You must attack the guardian ad litem.  Good luck, right?  Judge appointed him/her.  Opposing counsel is friends with him/her.  Good luck.

We handled a case once with the following scenario:  wife made a false claim of domestic violence (we represented husband, could you tell?) followed by a petition for dissolution of marriage and for parental relocation to Canada from Florida.  Effectively would have disenfranchised father from being in his child’s life.  Wife sought the appointment of a guardian ad litem to conduct an investigation and make a report and recommendation.  Judge granted the request over objections of husband.  Guardian ad litem was friends with judge and opposing counsel.  Guardian met the husband at his home.  They did not get along.  Guardian’s mind had already been made up.  Not good.  We finally got the guardian ad litem’s report.  As expected, not good.  But on closer analysis we saw that the guardian claimed to have interviewed some witnesses – doctors – and his report attributed statements to those doctors.  Unfavorable statements to our client, which, along with the initial false claim of domestic violence, would be the foundation for a recommendation to allow wife to relocate with the child to Canada.  Client could not believe the report of what these witnesses said.  We dug deeper.  Spoke to the witnesses and lo and behold, they denied having said what the guardian ad litem reported that they had said.  The attack turned towards the truthfulness of the guardian ad litem.  Ultimately the report was withdrawn.  But the judge did not forget that we had trashed a friend of the court, a friend of opposing counsel.  The process stinks.  Unless you are on the inside.  Unless you are part of the fixed and rigged system, you must object to the appointment of a guardian ad litem.  It is the lazy judge’s way out.  Let the guardian ad litem do my work.  Let them talk to the witnesses.  Let them make the recommendations.  Don’t force the movant to bring witnesses to court to testify, to be judged, to have their credibility judged and story tested against all the other evidence in the case.  No, let’s let the guardian ad litem be the judge and I’ll rubber stamp the report.  That’s how it goes most of the time.

Cost of a guardian ad litem.  Expensive proposition.  Only viable when the parties or one of them has big bucks to throw away.  What you really get is a private judge who conducts a private and secret trial and issues a verdict in the form of a report that you might get 20 days before an important hearing and, even if you do, it’s going to be accepted by the court in most instances.  Object to the appointment of a guardian ad litem unless you are in on the fix.

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