During contested custody and visitation matters, parents often wonder if they should request a Guardian ad Litem (“GAL”) for their child. A GAL is an attorney appointed by the court to represent the minor child, who will conduct an independent investigation and make a recommendation to the court of what they believe is in the child’s best interests. There are certain matters in which GALs are always appointed, such as abuse and neglect cases, but in most cases the court has broad discretion to grant or deny the request to appoint one.
Appointment in Juvenile and Domestic Relations District Court
In juvenile and domestic relations district (“J&DR”) court, the court may appoint a GAL for custody and visitation matters pursuant to Va. Code § 16.1-266(F):
… [where] in the discretion of the court [the matter would] require counsel or a guardian ad litem, or both, to represent the child or children or the parent or guardian, discreet and competent attorneys-at-law may be appointed by the court. However, in cases where the custody of a child or children is the subject of controversy or requires determination and each of the parents or other persons claiming a right to custody is represented by counsel, the court shall not appoint counsel or a guardian ad litem to represent the interests of the child or children unless the court finds, at any stage in the proceedings in a specific case, that the interests of the child or children are not otherwise adequately represented.
Whether or not a GAL is appointed is also governed by local practice rules. For example, some courts always appoint a GAL if a third party (non-parent) files for custody. In addition, at any point in the proceedings, the court may appoint a GAL without a request if it feels the minor children’s interests are not being adequately conveyed.
Appointment in Circuit Court
In circuit court, the authority to appoint a GAL arises from the court’s general equity powers and its role as parens patriae to protect those unable to safeguard their own interests, as recognized in Verrocchio v. Verrocchio, 16 Va. App. 314 (1993). In general, GALs are appointed far less often in circuit court.
What are the Benefits of Having a GAL and Why Would a Court Appoint One?
What constitutes sufficient grounds for appointing a GAL can vary significantly from judge to judge. Common reasons for appointment include allegations of abuse or neglect, claims of parental alienation, the need for assistance with negotiations, and providing the court with information it might not otherwise receive—particularly when one or both parties are self-represented. In addition, an appointment can reduce the need for a minor child to be called as a witness, since the GAL may communicate the child’s reasonable preference to the court.
Some parents and attorneys also view a GAL as a way to get hearsay statements and other evidence before the court that may not otherwise be admitted. It is important to note that while the GAL’s report itself is not evidence, the GAL may convey information obtained during their independent investigation as the basis for their recommendations. The court should consider a GAL’s report and recommendations and may assign them whatever weight it deems appropriate, so long as they are supported by an adequate investigative foundation, as recognized in Bottoms v. Bottoms, 249 Va. 410 (1995), and Wiencko v. Takayama, 62 Va. App. 217 (2013).
What Are the Potential Drawbacks to Having a GAL?
Parents sometimes disagree with the type or extent of investigation conducted in their case. Although parents may suggest individuals for the GAL to contact or materials to review, the GAL ultimately determines the scope of the investigation. The GAL is not required to disclose information learned during that process and is not subject to discovery.
GALs may also meet with the child at your home, the other parent’s home, or another location—such as the child’s school—with or without advance notice. This can be jarring for some parents who want to know ahead of time who is speaking with their child, or if they want to be more prepared for a home visit. Additionally, the level of experience and knowledge can vary greatly between GALs, which can impact the level of advocacy for the minor child.
Who Pays for a GAL?
In J&DR court cases, the Commonwealth of Virginia reimburses the GAL for fees and costs, which the court will typically apportion between the parties. In circuit court cases, however, the party requesting the appointment is often required to pay the GAL’s fees up front, which the court may apportion between the parties at the conclusion of the case.
In Virginia J&DR courts, the current GAL rate is $57.50 per hour for out-of-court work and $78.75 per hour for in-court work or face-to-face meetings with the child. In circuit courts, however, GALs are not bound by these rates and may instead charge a market rate based on the parties’ incomes.
Adding another cost onto litigation expenses may be more than a party would like to spend. Although the court may apportion the GAL’s fees based on the parties’ respective incomes, it is not required to do so. In determining responsibility for payment, the court may also consider the reason the matter was brought before it, which party requested the appointment of the GAL, and the parties’ conduct during the litigation.
Can the GAL Be Removed from My Case?
In performing their duties, GALs must comply with Rule 8:6 of the Rules of the Supreme Court of Virginia and the Standards to Govern the Performance of Guardians ad Litem for Children, adopted by the Judicial Counsel of Virginia effective September 1, 2003. A party seeking removal of a GAL must show that the GAL has failed to follow these Rules and Standards—for example, by not meeting with the child in person. The court may also remove a GAL if a conflict of interest exists. However, disagreement with the GAL’s recommendations or dissatisfaction with the way the investigation is being conducted is not grounds for removal. Because judges are generally reluctant to remove a GAL, such requests are rarely granted.
If you are involved in a contested custody or visitation matter and are unsure if you should request a GAL for your child, or you have a GAL and would like to maximize the opportunity for your case, be sure to discuss your options with a knowledgeable family lawyer in your area. The family law attorneys at Livesay & Myers, P.C. have extensive experience with all aspects of custody and visitation, and with how these matters are handled in the courts of Northern Virginia. Contact us to schedule a consultation today.