It is not uncommon, although it varies from county to county, for a court to appoint a guardian ad litem to investigate and make recommendations concerning the best interest of the child or children in a child custody case. As you can imagine, since the guardian ad litem is appointed by the judge, the guardian ad litem’s opinion can carry quite a bit of weight. Understanding the role and limitations of a guardian ad litem can be critical in a case and is oftentimes the difference between a win and a loss in court.
Section 107.001 of the Texas Family Code defines a guardian ad litem as:
(5) "Guardian ad litem" means a person appointed to represent the best interests of a child. The term includes:
(A) a volunteer advocate from a charitable organization described by Subchapter C who is appointed by the court as the child's guardian ad litem;
(B) a professional, other than an attorney, who holds a relevant professional license and whose training relates to the determination of a child's best interests;
(C) an adult having the competence, training, and expertise determined by the court to be sufficient to represent the best interests of the child; or (D) an attorney ad litem appointed to serve in the dual role.
In many counties, the county utilizes a Domestic Relations Office (DRO) that employs county-employed guardian ad litems. In other counties, there is not a DRO and guardian at litems are contracted privately by the litigants.
What is the Role of a Guardian ad Litem?
Basically speaking, the guardian ad litem’s job is to investigate the best interest of the child and make recommendations to the judge or jury. The Texas Family Code outlines, in detail, both the powers and duties of the guardian ad litem in Section 107.002. Essentially it’s a really long way of saying the guardian ad litem shall investigate the best interest of the child, participate in the litigation, provide a report in a contested case, and ultimately testify to the judge or jury.
The Guardian ad Litem Report
In a contested case, the guardian ad litem is required to submit a report to the court. The report will be filed ten days before the final trial or whenever is required by the scheduling order. It is a good idea when preparing for a final trial to request that the judge order the guardian ad litem report to be filed further out than ten days before final trial. Many counties have local rules that require the parties to submit their proposed parenting plans weeks before trial. For example, Travis County requires that the parties submit a proposed parenting plan two Mondays before the final trial. If a guardian report is not due until after the parties’ proposed parenting plans are due, this can cause confusion and difficulty in drafting a proposal to the court.
Furthermore, if a recommendation by the guardian ad litem is not favorable, the party for whom the report is unfavorable may want to consider making a jury demand. A jury demand must be made thirty days prior to final trial. Because of this, it may make more sense to have the guardian ad litem report be due more than thirty days prior to a final trial so a party has time to make a jury demand.
The report is led by the rules of evidence. If you have hired an efficient and good lawyer, they will search the report for evidentiary problems and make sure those portions of the report are not considered by the judge or jury.
What Recommendations Can a Guardian ad Litem Make?
The Family Code simply states that the guardian ad litem shall determine the “best interest” of the child. Does this mean that the guardian ad litem can make custody recommendations? Many practitioners and judges say yes, but the Family Code actually says there are limitations.
Texas Family Code Section 104.008 states:
Sec. 104.008. CERTAIN TESTIMONY PROHIBITED.
(a) A person may not offer an expert opinion or recommendation relating to the conservatorship of or possession of or access to a child at issue in a suit unless the person has conducted a child custody evaluation relating to the child under Subchapter D, Chapter 107.
(b) In a contested suit, a mental health professional may provide other relevant information and opinions, other than those prohibited by Subsection (a), relating to any party that the mental health professional has personally evaluated.
(c) This section does not apply to a suit in which the Department of Family and Protective Services is a party.
So, if a guardian ad litem has not conducted a child custody evaluation, he or she should not be allowed to offer an opinion about conservatorship (e.g. “custody”) or possession and access. Many guardian ad litems and even judges say that the “best interest” recommendation of the guardian ad litem must include conservatorship and possession and access. However, Section 104.008 seems very clear when it states that “a person” (presumably guardian ad litems are people!) must conduct a child custody evaluation prior to offering an opinion about conservatorship or possession and access.