If you're going through a divorce with children and there's an abuse allegation, or if you and your co-parent aren't successful in negotiating child custody and visitation, the family court may appoint a guardian ad litem in your case.
What is a Guardian ad Litem?
A guardian ad litem (GAL) is an attorney appointed by a court to represent the interests of a child. In Pennsylvania, a court can appoint a GAL on its own decision or the motion of another party. See 23 Pa.C.S. § 5334(a) (2019). The court typically assesses the costs of the GAL to the parties involved in the action. See id. at § 5334(e).
The court will appoint a guardian ad litem in several situations, including:
- If the child has had issues like chronic truancy or aggressive or violent behavior,
- If the child may be a victim of abuse and their parents are under investigation,
- During a divorce, if one parent accuses the other of abuse or unfit behavior, or
- In high conflict custody cases.
In a custody case, family judges are reluctant to appoint a GAL in the absence of an abuse allegation because the courts prefer to have parents work out their conflicts outside of the courtroom.
Duties of the Guardian ad litem
Under Pennsylvania law, guardians ad litem represent the bests interests of the child during a court proceeding. The GAL must:
(1) If appropriate to the child's age and maturity, meet with the child as soon as possible following the appointment and on a regular basis thereafter.
(2) On a timely basis, be given access to relevant court records, reports of examination of the parents or other custodian of the child and medical, psychological and school records.
(3) Participate in all proceedings.
(4) Conduct such further investigation necessary to ascertain relevant facts for presentation to the court.
(5) Interview potential witnesses, including the child's parents and caretakers, if any. The guardian ad litem may examine and cross-examine witnesses and present witnesses and evidence necessary to protect the best interests of the child.
(6) Make specific recommendations in a written report to the court relating to the best interests of the child, including any services necessary to address the child's needs and safety. The court shall make the written report part of the record so that it may be reviewed by the parties. The parties may file with the court written comments regarding the contents of the report. The comments filed by the parties shall also become part of the record.
(7) Explain the proceedings to the child to the extent appropriate given the child's age, mental condition and emotional condition.
(8) Advise the court of the child's wishes to the extent that they can be ascertained and present to the court whatever evidence exists to support the child's wishes. When appropriate because of the age or mental and emotional condition of the child, determine to the fullest extent possible the wishes of the child and communicate this information to the court. A difference between the child's wishes under this paragraph and the recommendations under paragraph (6) shall not be considered a conflict of interest for the guardian ad litem.
23 Pa.C.S. § 5334(b) (2019).
Guardian ad Litem Recommendations
Before making a recommendation to the court, the guardian ad litem will meet with the child and the parents and caretakers. They will review any relevant school, psychological, and court records. The GAL's goal is to provide the court with a neutral evaluation of the arrangements to ensure a child's needs and safety concerning their emotional, mental, and physical health.
The GAL may provide the court with a written report, which both parents can review and comment on. Part of the GAL's role is to explain the proceedings to the child and voice the child's preferences to the court. The court may require the GAL to testify and be cross-examined by both parties.
Best Interests of the Child
While the family court will consider the guardian ad litem's recommendations, ultimately, the court must decide custody disputes based on the child's best interests. In determining the best interests of the child, the court must consider the GAL's recommendations as well as the following factors:
- Which party is most likely to allow frequent and ongoing contact between the child and the other party seeking custody or visitation,
- Whether either party committed abuse against the child or another member of their household, and whether there is an ongoing risk of harm to the child or another abused party,
- A conviction for certain violent crimes, sexual assault, or crimes against children for either party,
- If one party can better provide physical safety and supervision of the child,
- Which parenting duties each party fulfills for the child,
- How to provide stability and continuity in education, community life, and family life for the child,
- If each parent's extended family is available,
- Any sibling relationships in the family,
- What the child prefers, depending on their maturity and judgment,
- Whether either parent has attempted to alienate the child from the other parent, except in abuse situations where a parent must put in place reasonable safety measures to protect the child,
- Which party is most likely to provide a stable, consistent, loving, and nurturing relationship with the child and meet the child's emotional needs,
- Which party is most likely to meet the child's daily needs, including their physical, emotional, developmental, educational, and special needs,
- How far apart the two parties live,
- Whether either party can care for the child daily or make adequate child-care arrangements,
- How willing and able both parties are to cooperate and the level of conflict between the parents – however, protecting a child from abuse isn't evidence of an unwillingness to cooperate,
- Whether either party has a history of drug or alcohol abuse, or whether any member of their household does,
- The medical and mental condition of each party and members of their household, and
- Any other relevant factors.
See 23 Pa.C.S. § 5328(a) (2013). The court will weigh factors concerning the child's safety before all others.
Hire an Experienced Family Law Attorney
If you're facing a heated custody dispute in Pennsylvania or an allegation of abuse against you or your co-parent, you shouldn't try to navigate this process alone. You need the help of an experienced Pennsylvania family law attorney who is well versed in cases involving guardians ad litem. Attorney Joseph D. Lento has helped many Pennsylvania families navigate the custody process. He can help you too. Contact the Lento Law Firm online today, or give them a call at 888-535-3686.