Appointment of a Guardian Ad Litem to Your Custody and Visitation Case
Virginia family courts frequently appoint Guardian Ad Litems in custody and visitation cases. When parents learn of the appointed guardian in their case, they have many common questions and concerns. For example:
Is he or she an investigator, an attorney, or both?
Will he want to speak with me or my lawyer?
What will she tell the judge?
What impact can he have on my case?
Generally speaking, there is mystique surrounding the Guardian Ad Litem’s role.
This past fall, the Standing Committee on Legal Ethics for the Virginia State Bar issued Legal Ethics Opinion 1870. In this Opinion, the committee elaborates on the role and responsibility of a Guardian Ad Litem. A Guardian Ad Litem is to represent, as an attorney, the child and his or her best interests before the Court. The Guardian Ad Litem must act as an attorney and not as a witness, which means that he or she should not testify in court. Just like an attorney for a father or mother, a Guardian Ad Litem is a full and active participant in all the litigation. He or she must investigate the facts, interview witnesses, prepare for trial, and argue the facts to advance the interests of his or her client: the child.
Because of the Guardian Ad Litem’s role and responsibility as an attorney, he or she is subject to the same professional and ethical rules as any other lawyer. For example, a lawyer may not communicate with a represented party. The Guardian Ad Litem may not communicate with the father or mother if either is represented by legal counsel. Likewise, the father’s lawyer and mother’s lawyer may not speak with the child if a Guardian Ad Litem is appointed to represent the child. The only exception is when a Guardian Ad Litem consents to communication or a court order authorizes such contact.
Other implications of the Guardian Ad Litem’s role and responsibility may not be as apparent. For example, given the Guardian Ad Litem acts as an attorney, a court arguably should not delegate judicial functions to the Guardian Ad Litem. All decision-making power should remain with the judge.
What does that mean for your case? Well, for starters, a court probably should not give a Guardian Ad Litem the authority to determine or modify custody and visitation parameters during the pendency of litigation. Courts frequently do so, often for compelling reasons. Nevertheless, ethical duties and rules should take precedence.
If you have questions or concerns concerning the role of a Guardian Ad Litem appointed in your case, an experienced family law attorney can assist you. The attorney can also communicate effectively with the Guardian Ad Litem in your case to promote what you believe is in your child’s best interests.