NEWSLETTER - FAMILY LAW
May 4, 2010
Basic Information Regarding Guardians Ad Litem in Virginia Family Law Cases
by Julie Hottle Day, Esq.
Q: What is a Guardian ad Litem (GAL)?
A : In a family law setting, a GAL is an independent attorney appointed in a litigation to represent the interests of the child or children whose interests are at issue in the case and who are otherwise not represented by counsel in the matter. A GAL may also be appointed for any party in the matter who is not otherwise represented by counsel but suffers under a disability which renders him or her unable to engage in the litigation on his or her own behalf, such as mental illness or incarceration.
Q: What can be done if a GAL does not uphold his or her obligations?
A: A motion to remove the GAL may be filed by any party to a case. Such a motion must be based upon identifiable patterns of conduct by the GAL which violate his or her obligations to the child(ren) he or she represents. Any party or professional involved in such a case who is concerned that a GAL fails to meet his or her obligations should carefully document all such behaviors giving rise to that concern and be prepared to present them to the court.
Q: How and why is a GAL appointed in a case?
A: In family law litigation involving children, the courts must make all determinations using the guideline of the child’s best interests. The courts recognize that parents seeking custody or other relief regarding their children may have an inherent conflict between their own interests in seeking relief and the best interests of the child involved.
Although statutes exist which authorize appointment of GALs in certain cases, their jurisdiction is reserved to those issues involving paternity, abuse, neglect and placement issues of children. No statute exists at the juvenile or circuit court level which permits or requires appointment of a guardian ad litem for a child involved in a custody dispute. Guardians are appointed by the court under the general authority granted them as courts of equity.
Determination by a court as to whether or not a GAL should be appointed is made in the discretion of the court on a case by case basis. However, at least one Virginia Supreme Court decision has enunciated that a court must have a "cognizable basis" for granting such equitable relief which goes beyond a sense of what is just or appropriate. Verrocchio v. Verrocchio, 16 Va. App. 314, 429 S.E.2d 482 (1993). This "cognizable basis" may include a determination that the best interests of the child are not adequately protected by the parties.
Q: Who pays for the GAL?
A: As part of the discretionary powers resting in a court of equity, the trial judge may also apportion between the parties the fees and costs for services rendered by the GAL.
Q: What are the duties of the GAL?
A: There exists no statutory enunciation of the duties of a GAL in the family law context. A published set of guidelines exists, a link to which is indicated below. The guidelines include competency requirements for those appointed as GALs in Virginia. The website also includes a list of approved GALs.
Generally, courts have held that the chief duty of GALs is to act in the best interests of the children for whom they are appointed. They must act "with competence, reasonable diligence, and promptness." They are also required to "make a full and independent investigation of the facts involved in the proceeding prior to making their recommendations to the court. Such an investigation should include interviewing the parents and children involved. 6-A Michie’s Jurisprudence, Divorce and Alimony §53.1.,
The duties of guardians ad litem require them to avoid conduct which reflects adversely on the undivided devotion owed by GALs to the children they represent. GALs therefore have an affirmative duty to disqualify themselves following cognizance of good cause and to disclose facts that possibly could disqualify them from representing children in certain instances. 1-7 Michie’s VA Jurisprudence on Family Law, Section 27.
Resources:
Virginia Judicial System Web Page on Guardians Ad Litem, Including Standards: http://www.courts.state.va.us/gal/home.html
Online Documentation Tool: www.evdense.com
