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.
Counties typically utilize 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. 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.
Can They Make Custody Recommendations?
There is much, much more than can be written on child custody evaluations. But back to the original question – can a guardian ad litem give custody (conservatorship and possession and access) recommendations? The short answer: no, unless the guardian ad litem has performed a competent child custody evaluation.
What if You Have an Unfavorable Guardian ad Litem?
So, it all comes down to this – what to do if a guardian ad litem is not favorable to your side?
The first and foremost thing to do is not panic. Just because a guardian ad litem does not agree with you does not mean your case is lost. Guardian ad litems make mistakes just like all humans. A judge does not necessarily have to follow what the guardian ad litem recommends. With good cross examination and a clear trial presentation, a talented lawyer can demonstrate to a judge or jury why the guardian ad litem simply got it wrong.
Although each case is different, generally speaking, if you have an unfriendly guardian ad litem on your case, you should consider the following:
- Verify that the guardian ad litem did the investigation required by the Texas Family Code. Look for bias and cut corners.
- Take the guardian ad litem’s deposition and get his or her entire file to see what the guardian ad litem relied on.
- Consider filing a jury demand if you feel the judge is just going to “rubber stamp” what the guardian ad litem says.
- Check the guardian ad litem’s qualifications to see if he or she is qualified to conduct a child custody evaluation.
- Check the order appointing the guardian ad litem – was a child custody evaluation authorized?
- If the guardian ad litem did not conduct a competent child custody evaluation, move to strike the opinion of the guardian ad litem and/or limit the guardian ad litem’s testimony at trial.
A guardian ad litem can be very helpful or very detrimental to a case. Knowing the requirements and limitations of a guardian ad litem can be crucial to any case. It is important that the guardian ad litem’s opinion is taken very seriously and dealt with a great deal of attention and care. Finally, make sure you have a lawyer who is experienced in cross examining guardian ad litems and familiar with both the strengths and weaknesses of a guardian ad litem’s testimony. Check out our next blog, What is a Child Custody Evaluation?
If you are going through a custody battle or are considering filing for custody of your child, it is vital for you to hire an experienced attorney to advocate for your rights. A good attorney will be able to explain the potential range of outcomes to you. Reach out to our team today to talk about your family law matters.