Family Court Judges and Domestic Relations Commissioners have long used private, independent lawyers to facilitate resolving custodial and timeshare disputes in divorces. These lawyers are appointed by the judge as a Guardian ad Litem who is to, in some manner or another, look out for the children involved. The role of that Guardian ad Litem (or GAL) can be a confusing and ambiguous thing. However, the Supreme Court of Kentucky has issued a case opinion that resolves much of that ambiguity.
In Morgan v Getter, 2012-CA-000655-ME (Decided 9/18/2014), which is to be published and thus binding law, SCOKY has delineated two roles for a GAL that are essentially at odds with one another. The first role is that of an investigator who is supposed to interview people and look into circumstances as an arm of the court. SCOKY refers to this role as that of a Friend of the Court (FOC). The other role is that of a legal advocate for the children who is their lawyer and can file motions, call witnesses, introduce evidence, and all the other things that a lawyer for a party in a case can do.
SCOKY explains that if a GAL is operating as a FOC, essentially an adjunct fact finder reporting to the court, then they cannot also be operating as the lawyer for the child. As a fact finder, they must be subject to being put under oath to testify and be cross-examined just as if they were any other witness. That prevents them from also, then, being the chid’s lawyer due to various ethical concerns. Conversely, if the GAL is the child’s lawyer, then they cannot be made to testify and ethical protections, such as attorney-client privilege, remain intact.
The court also clarified that a GAL who is the advocate or attorney for a child does NOT have to pursue the wishes of the child. Instead, they can ascertain what they believe is BEST for the child, even if it is not the WISHES of the child. However, when these two things are not the same, the GAL should inform the court of what the child’s wishes appear to be.
On a practical level, if attorney’s for parties are asking for a Guardian ad Litem, they should be clear on which role they hope for that attorney to fulfill. Likewise, the judge will need to be clear in their order as to whether the GAL is an investigator such as a FOC, or an advocate for the child. Sometimes, both roles are needed which would require two different attorneys be appointed, obviously raising the cost to the parties.