The Pennsylvania Supreme Court's decision earlier this month to alter the role of guardians ad litem in new procedural rules for custody cases should bring clarity to the role, several family law veterans said.
"When a child is suffering from harm or is in a diminished capacity, the guardian ad litem plays a very important role in speaking for the best interests of the child," said Delaware County Court of Common Pleas Judge Barry Dozor, liaison for the Family and Juvenile Division. "The new rules are welcome and they provide a clear explanation of the roles for both a guardian ad litem and also for an attorney representing a minor."
"It lets the guardian ad litem know what the rules of the game are," Dozor continued, "because like any professional that provides advice, he may be required to testify, to be cross-examined and give reports and records, and we treat him as we treat all expert testimony."
From a family law attorney's perspective, Michael E. Bertin, a partner at Obermayer Rebmann Maxwell & Hippel in Philadelphia, said the new rule brings welcome specification.
"Previously, the lines were a little blurred. … Now, it's clear that a guardian ad litem is not an advocate for the child," Bertin said. "The problem you had before was that it was confusing as to what role belonged to guardian ad litem and counsel. That could create an inherent conflict, because what a child may want you to argue as his or her counsel might not necessarily be in that child's best interest."
Bertin also praised the rule for making the interpretation of the guardian ad litem's (GAL) duties, as well as appointment, less convoluted.
"It just makes the system clearer," he said. "The court now will have a better guide as to how they can more appropriately appoint GALs."
Under Pennsylvania's domestic relations law, a GAL can operate as a child's legal counsel as well as represent the child's best interests in custody cases. However, the rule now will require GALs to represent only the best interests of children. The rule also will bar GALs from acting as children's legal counsel.
The court also suspended the requirement that GALs be attorneys, as well as the right for GALs to present evidence on behalf of children. The court now will allow for mental health professionals to be GALs and represent children's best interests. In addition, GALs are now no longer prohibited from testifying in court.
Additionally, the rule says "the court may, on its own motion or the motion of a party, appoint a guardian ad litem to represent the best interest of the child in a custody action. The guardian ad litem shall be a licensed attorney or a licensed mental health professional. The guardian ad litem shall not act as the child's counsel or represent the child's legal interests. Prior to appointing a guardian ad litem, the court shall make a finding that the appointment is necessary to assist the court in determining the best interests of the child."
Justice Thomas G. Saylor dissented from the court's suspension of the part of the statute that established the duties and responsibilities of GALs. The reasons for Saylor's dissent were not listed in the court's amended order issued August 1.
Megan E. Watson, a partner with the family law boutique Berner Klaw & Watson, said she thinks that "the changes [the justices have] made under the rule are actually better. … I don't disagree with anything they've put in the rules. It makes it better for both the parties and the children involved."
Watson said, however, that the court may have overstepped its authority to enter the purview of the General Assembly.
"The Supreme Court in a rule does not have the authority to suspend a statute," Watson said. "They can't suspend a statute that was passed by the legislature. When there's a conflict between a rule and a statute, the statute trumps. When it comes to the GAL, the statute specifically says you have to be a licensed attorney. [The court] is now saying the GAL can be a lawyer or a mental health professional. What this does is it creates problems with the [trial] court. Do they follow the statute or do they follow the rule?
"The second part of the problem is that the statute says the GAL cannot be called upon to testify, but they're allowed to make legal arguments and recommendations," Watson continued. "The rule says that the GAL shall be subject to cross-examination," which is a conflict with the statute.
In addition to Saylor's dissent from the court's redefinition of GAL duties and appointments, the justice also dissented from the court's decision to redefine in the new rules that the scope of relocations of children excludes uncontested relocations.
Specifically, Saylor dissented from the section of the rule that said "if no objection to a proposed change of a child's residence is timely served after notice, the proposing party may change the residence of the child and such shall not be considered a 'relocation' under statute or rule."
"In terms of relocation, it seems they've determined that nobody has to file an affidavit or a counter-affidavit, and you don't have to have a hearing," Watson said. "Personally, I think that if there's no objection, there should at least be a requirement that [parties] inform the court of the change in residence or they get a new custody order to recognize that they moved."
Attorney Frank Cervone of Support Center for Child Advocates lauded the new consensual relocation provision.
"I think it's simpler. It relieves the burden of those cases that don't have to go to court and it ups the stakes for those that should be going to court," he said. "It will certainly streamline the system, which I think was precisely the mind of the court."
The change in the statute was most likely brought about by a nationwide trend in clarifying the role of GALs, according to Dozor.
"It's not unexpected," he said. "All judges follow what's being done in other states and other parts of the country. Pennsylvania is following the dominant view that these roles are different, and they've helped to statutorily define these roles. It doesn't change what we do much it all, but it provides help to who we appoint to understand the roles."