Family courts often appoint attorneys or others to act on behalf of the court or work in the best interests of the child. What these individuals are called varies from state to state. For the sake of simplicity, when the appointment refers to a person appointed to work on behalf of the Court, we refer to them as a Guardian Ad Litem (GAL). Most attorneys practicing family law have at some point been in a case where a GAL was appointed. This article posits that when the appointment of a GAL is made on behalf of the court, rather than representing what the child wants as a party to the action, the appointment creates a circumstance that may be unconstitutional and a violation of the rights of an individual party.
The parties in a child custody dispute each offer the court what they believe is in the best interests of the child. Judges should approach each case independently, comply with the law, and determine the relevant facts. Only then should they make a decision about the “good of the child”. In carrying out his prosecution, no judge is permitted to have ex parte contact with counsel, parties or other witnesses to the case. They are supposed to be neutral referees. Our justice system is an adversarial system, even in the area of family law, where parties with opposing positions bring them to justice and then the court, without a jury, after a hearing, makes a best-interest decision. When a GAL performs work on behalf of the court, it is as if the court had its own private investigator, and thereby the GAL effectively makes the court like a third party in a two-party case.
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