Guardian ad Litem: Do I Want One for My Custody Case?

Guardian ad Litem: Do I Want One for My Child Custody Case?

–by Sam Darling, Divorce Attorney in Washington State

The decision whether to request a Guardian ad Litem (GAL) can be the biggest strategic move you make in your child custody battle. This article (and video) briefly explains a) what a GAL is, b) how much one costs, c) the value of one, and d) why you might NOT want one in your case.

 

What is a GAL?

In a child custody case, a Guardian ad Litem, or “GAL”, is someone who investigates the parties’ parenting-related allegations and makes recommendations to the judge, such as recommending which party should receive custody (primary care). The judge usually follows the recommendations.

How Much Does One Cost?

The typical GAL in Snohomish County, Washington (where the author of this article practices) charges $75 – $250 per hour and requires an advance fee deposit (retainer) of $1,500 – $3,500.

The court normally apportions these fees between the parties 50/50 or based on the parties’ proportionate incomes. Sometimes the court instead apportions all or nearly all the fees to the requesting party, especially when the court doubts a GAL would be of much benefit.

The local government occasionally pays the associated fees, but that is very rare in the author’s experience. If you’re requesting a GAL, you should be prepared to pay out of your own pocket.

When Does a GAL Bring Value to the Proceeding?

A court will ordinarily see value in appointing a GAL when two or more of the following factors are present in your case:

  • Allegations of Abuse or Addiction, including domestic violence, sexual abuse, drug abuse, alcoholism, abusive use of conflict (such as one parent habitually demeaning the other parent in front of the children), or unreasonably withholding the children from the other parent.  The GAL, unlike a judge, can go outside the courtroom and investigate these allegations.
  • Information from Children. The court usually will not want your children to testify, but the court may nonetheless want information from them. In that situation, the court often will want a GAL to tactfully interview the children and report back on what the children said.
  • Information from CPS. According to Washington law, a GAL can access certain CPS records parties cannot.
  • Contradictory Declarations. The greater the difference in the parties’ parenting-related allegations, the more the court will want a GAL to investigate.
  • Inadmissible Evidence. A GAL, unlike the court, can usually review and consider inadmissible evidence such as hearsay (though the inadmissible evidence generally cannot be the sole basis for the GAL’s recommendations to the court).
  • Multimedia Evidence. The court often will not review multimedia evidence, including videos and audio recordings, prior to trial. This is a practical issue. Watching videos and listening to recordings takes time, which the court has very little of at hearings (as opposed to the time available at trial). A GAL, on the other hand, can review multimedia materials and report his or her opinions to the court.
  • Large Amounts of Evidence. Similar to multimedia evidence, the court’s time constraints warrant a GAL when there are large volumes of evidence to review.

Why Would I Not Want a GAL?

  • Financial Cost. As described above, a GAL can be expensive.
  • Less Familiarity with Law & Legal Norms. GALs tend to have less familiarity with the law and legal norms than do judges and attorneys. That means GAL’s sometimes misapply legal standards when making recommendations to the court. This can be especially frustrating to parties who are “in the right” but have a “runaway GAL”. Appointing an attorney as GAL can minimize this risk, but attorney-GALs charge more.
  • Influenced by Personalities. GALs are more influenced by personalities than judges might be. This is because GALs often formulate their opinions by informally interviewing parties and witnesses out of court.
  • Less Attention to What Already Submitted to Court. GALs occasionally pay more attention to the evidence they have the unique ability to gather as opposed to the evidence already submitted to the court. This increases the probability of a GAL favoring the party who seemed more likeable in his or out-of-court interview, despite the evidence against that person.
  • Game Changer. When the court appoints a GAL, all bets are off, so to speak. His or her recommendations tend to be difficult to predict and can dramatically change your case’s dynamic. If you like the way the case has been going without a GAL, you probably do not want to risk bringing one onboard.

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