Does Your Child Need a Guardian Ad Litem?

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If you’re involved in a divorce involving children, a custody dispute, a stepparent adoption, a guardianship matter, or any other family law case that affects your child, the court may appoint a guardian ad litem – or GAL – to represent their best interests.

The same is also true of cases that involve adult children with disabilities. A better understanding of what’s involved can help you determine if your child could benefit from a guardian ad litem. If the legal matter you’re facing involves your child, don’t wait to consult with an experienced Round Rock family law attorney for the legal guidance you need.

The Meaning of Guardian ad Litem

When a judge appoints a guardian ad litem, they do so to help bring clarity to the situation. Family law matters tend to channel high emotions, and having an experienced GAL in the mix helps to ensure that the child’s best interests aren’t lost in the shuffle. The GAL doesn’t work for – nor do they represent – the parents, the court, the social worker, or any agency.

Instead, the GAL is there to help determine the best course of action in relation to the specific child’s overall well-being. The guardian ad litem is generally appointed by the court to make relevant recommendations for a person whom the court deems in need of protection. While the person being protected is often a child, this isn’t always the case.

The process employed generally includes all of the following:

  • Interviewing the child and others in their orbit

  • Researching the child’s history and overall mental and physical health and well-being

  • Establishing how well the child is doing in terms of their current living situation, school, and community

The GAL follows up by presenting their conclusions to the court – generally in the form of a report that compiles their findings.

Often, GALs are attorneys whom the court appoints to fill this role, but their job is very different from an attorney’s. Your family law attorney is your advocate, and in this capacity, they provide you with skilled legal representation and advice.

A GAL’s job, however, is investigating a specific situation in the context of the best interests of the child in question and analyzing the information, which leads to findings that are presented in the form of recommendations to the court.

Another distinction between an attorney and a GAL is that, although the court appoints them, the parent or parents generally pay for the reasonable fees charged for their services. While you, as an adult, can hire an attorney and work with them in support of your own best legal interests, your child cannot, and this is where a guardian ad litem sometimes comes in.

When Guardian ad Litems Are Most likely to be Appointed

While a guardian ad litem can be appointed by the court in many different kinds of legal cases, it’s most common when a decision needs to be made that directly affects the overall health or well-being of a child. Common examples include:

  • Adoption cases, including stepparent adoptions and foster parent cases

  • Child custody disputes related to both legal custody and parenting time, including divorces and child custody modifications

  • Cases involving the termination of parental rights

  • Cases involving allegations of abandonment, child abuse, or child neglect

If the legal issue directly affects a child and the court determines their best interests need protection, a GAL is likely to be appointed.

The Guardian ad Litem’s Responsibilities

Guardian ad litems shoulder a considerable amount of responsibility that generally extends to all the following:

  • Meeting with the child to help establish their ability to make decisions that support their best interests, their preferences, and their needs

  • Interviewing the child to ensure that the recommendations they make are in keeping with their best interests

  • Determining if the child requires their own legal counsel

  • Advocating on behalf of the child’s best interests throughout the process

  • Creating and submitting a well-researched and well-crafted report of their findings

  • Appearing in court to present their findings on the child’s behalf

A GAL can also be called to testify in court in relation to the case at hand.

The Guardian ad Litem’s Qualifications

While their backgrounds can vary significantly, guardian ad litems generally have considerable knowledge about all the following topics:

  • Parenting plan schedules

  • Child development

  • Issues related to child trauma

  • Permanency planning, which relates to achieving family support for children living in an institution by finding them a permanent living arrangement that includes an enduring and nurturing parental relationship

  • Child protection services

  • Relevant case law

GALs are also subject to background checks that delve into any criminal history or allegations of child abuse. Because they work with the most vulnerable among us, suitability for the work must be ensured.

As a Parent, You Can Request a GAL for Your Child

If you’re facing a family law case in which your child’s best interests are at stake, you can request a guardian ad litem for them, but your request won’t necessarily lead to an automatic appointment. Each GAL determination is made on a case-by-case basis.

The judge handling your case will carefully consider the value a GAL would bring to the case and the degree to which appointing their services is necessary, and when these two factors tip the balance, you can expect a guardian ad litem to be appointed.

It’s important to note here that the court won’t appoint a GAL in response to a parent’s request if it believes that the parent’s goal is bolstering their own agenda. Instead, the GAL’s focus is always on the child’s best interests – rather than on either parent or both parents’ preferences.

How the Court Decides

When Texas courts determine whether or not to appoint a GAL, they carefully consider factors like the following:

  • The nature and adequacy of the relevant evidence that’s available

  • The court’s need for more substantial information, assistance, or both

  • Each parent’s right to the care, custody, and control of their child

  • The financial burden involved with appointing a GAL and the party or parties’ ability to cover the GAL’s reasonable fees

  • The availability and relative cost of implementing an alternative approach to obtaining the information or evidence necessary to resolve the legal matter at hand

  • The factors that indicate a specific need for appointing a GAL

A Guardian ad Litem’s Report Can Be Challenged

While GALs are specifically tasked with determining, representing, and advocating for the best interests of children and have unique backgrounds that generally leave them well-suited to this endeavor, they are not infallible. Some are better than others, and their reports can be biased or simply incorrect.

If you’re facing a family law case in which you believe a GAL’s report is incorrect and, as a result, does not support your child’s best interests, it’s time to consult with a dedicated family law attorney who has extensive experience in this complex area of the law. To challenge the guardian ad litem’s report, you’ll need to demonstrate that they committed an error upon which your challenge is based.

GALs can also be terminated from their position if they either resign from their appointment or the court removes them from their position due to any of the following:

  • Failure to fulfill their responsibilities

  • Failure to effectively perform the duties required of them

  • Ethical violations

Adult Children with Disabilities

It’s important to note that a GAL can be appointed for a minor child or for an adult child whose disability interferes with their ability to protect themself. When an adult child has a disability that precludes them from making primary decisions on their own behalf the court can appoint a GAL to help establish their best interests and to add an additional layer of legal protection.

The GAL’s primary concerns when it comes to an adult with a disability generally focus on the following two issues:

  • If they are capable of appearing before the court

  • If they are in agreement or disagreement with the issue at hand, such as the matter of guardianship

The GAL’s investigatory process in adult cases generally includes meeting with the adult child, informing them of the legal action in question – such as their own guardianship – and explaining their legal rights in relation to the legal process. Depending on the individual’s capacity to understand and participate, the GAL will also delve into issues like the following:

  • The individual’s opinion of the proposed guardian

  • The individual’s relationship with the proposed guardian

The GAL may also interview the person seeking guardianship to better understand the person's relationship to the adult child, their motivations for seeking guardianship, and other relevant topics. Once the court makes its determination regarding guardianship—or the issue at hand—the GAL’s role ends.

It should be noted here that when the GAL position is terminated as a result of the matter being finalized by the court, the GAL’s involvement in the child’s life won’t necessarily end. They may continue to assess the child’s overall well-being to help ensure that they have a safe, loving home and that their needs are well provided for.

The Best Interests of the Child

When Texas courts are called upon to make decisions that directly affect children, they always base these decisions on the best interests of the children in question. Determining a child’s best interests, however, is a process rather than a static event, and the factors that play a role in child custody cases include all the following:

  • The child’s physical, educational, and emotional needs, including any special needs

  • Each parent’s ability to meet each of the child’s needs

  • How well the child is doing in terms of the status quo – or in relation to their current home, school, and community

  • Each parent’s level of involvement in raising the child to date

  • The depth of each parent’s relationship with the child

  • The child’s age and stage of development

  • The child’s overall mental and physical health

  • Each parent’s age and overall mental and physical health

  • Whether there are any concerns regarding domestic violence, child abuse, or child neglect

  • Each parent’s level of commitment to effective co-parenting and to supporting the other’s ongoing and close relationship with the child

  • Any additional factors that the court considers relevant

In a child custody case, a GAL may be assigned to help determine the child’s best interests in relation to all these factors and more.

The Court’s Position on Child Custody

Texas courts begin with the presumption that every child is best served when they maintain a strong, loving relationship with each parent, and this is reflected in their child custody orders. Only when there are extenuating circumstances involved that could directly affect a child’s overall safety or well-being will the court put serious limitations on or end a parent’s right to visitation.

The court is tasked with finding the right balance in support of the parent/child relationship and the child’s best interests overall. Depending upon the circumstances, the process can range from one that is fairly straightforward to one that is extremely complex. In the cases that are more challenging in this regard, a GAL is more likely to be appointed.

You Need an Experienced Round Rock Family Law Attorney on Your Side

Brett Pritchard at The Law Office of Brett H. Pritchard – proudly serving Round Rock, Texas, for more than 20 years – is a trusted family law attorney who is committed to guiding your case toward a favorable resolution that supports your parental rights and your child’s best interests.

We’re here for you, so please don’t wait to contact or call us at 254-781-4222 and schedule a free consultation today.

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