Family law courts often appoint attorneys or others to act on behalf of the court or to work on behalf of a child’s best interest. What these individuals are called varies from state to state. For easy reference, when the appointment refers to someone appointed to work on behalf of the court, we will refer to them as a Guardian Ad Litem (GAL). Most attorneys who practice family law have, at some point, been in a case where a GAL was appointed. This article posits that, where the appointment of a GAL is on behalf of the court, rather than to represent what the child wants as a party to the action, the appointment creates a circumstance that may be unconstitutional and a violation of an individual party’s rights.
The parties in a custody action each offer to the court what they believe is in the child’s best interest. Judges are supposed to approach each case independently, follow the law, and determine the relevant facts. Only then are they supposed to decide the “best interest of child.” In carrying out their charge, no judge is permitted to have ex parte contact with attorneys, parties, or other witnesses in the case. They are supposed to be neutral arbiters. Our system of justice, even in the realm of family law, is an adversary one, whereby parties with opposing positions put them before a court, and then, without a jury, after a hearing, the court makes a best interest decision. Where a GAL is doing a job on behalf of the court, it is akin to the court having its own private investigator, and thereby the court, through the GAL, effectively becomes like a third party to a two-party case.
