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Will the Guardian Ad Litem Choose the Parent with the Better Job?

If you think your child custody battle could potentially become contentious, or if it has already become contentious and a guardian ad litem has been appointed, you might be wondering what factors the guardian ad litem will consider when making custody recommendations and whether the guardian ad litem will choose the parent with the better job.

According to Washington Courts, a guardian ad litem or GAL is typically a person “appointed by the court to represent the best interests of a child,” though parents can also request that a GAL be appointed on their child’s behalf. A guardian ad litem doesn’t serve in the role as a lawyer, but can be a lawyer, mental health professional, or another professional. When a guardian ad litem is appointed, either one parent or both parents involved in the divorce may be required to pay the fee of hiring a guardian ad litem, though low income parents may receive aid if they cannot afford a guardian ad litem on their own. Once a guardian ad litem has been appointed to your case, even if you and your former partner reach an agreement about child custody on your own, your child custody agreement must be approved by the guardian ad litem.

In order to answer whether a guardian ad litem will choose the parent with the better job, we need to first unpack the “best interests of the child” standards. When it comes to custody, “best interests of the child” standards can be very vague. How one judge interprets the “best interests of the child” standard can differ from how another judge might see the case. While a guardian ad litem doesn’t have the legal authority to make custody decisions, the guardian ad litem can investigate your case and make recommendations to the judge which could potentially sway the court. Again, because “best interests of the child” standards can be very vague and open to interpretation, how one guardian ad litem might interpret your case could differ from how another guardian ad litem could interpret your case.

Things can get complicated when a guardian ad litem is appointed. There is always the risk that the guardian ad litem will make recommendations regarding custody to the court that neither parent wants, or may not approve a parenting plan that both parents agree upon. This is why so many divorce lawyers will encourage parents to resolve their custody decisions outside of court or through mediation, before the opportunity even arises for the court to have to appoint a guardian ad litem.

While there are cases where a guardian ad litem should be requested, like in cases of sexual or physical abuse, there are other instances where a guardian ad litem is appointed simply because custody disagreements turn into a custody battle.

If you are concerned about the prospect that a guardian ad litem may be appointed in your case, the best way to avoid this prospect altogether is to choose the collaborative divorce process. With collaborative divorce, both you and your former spouse sign a contract before divorce negotiations begin that you won’t take your divorce to court. If you don’t take your divorce to court, there’s no chance a guardian ad litem will be forcefully appointed, unless you choose to hire a child specialist to fill that role within the collaborative process. With collaborative divorce, both you and your partner will still be represented by your own collaborative lawyer. Collaborative divorce lawyers use negotiation and conflict resolution tactics to help divorcing couples resolve even the most challenging child custody cases. In complex situations, collaborative divorce lawyers might recommend that clients work with therapists, child psychologists, and other professionals to aid in the negotiation and settlement process. Truce Law is a collaborative law firm in Seattle, Washington that helps couples resolve their child custody battles peacefully and without the need for a guardian ad litem.

That said, if a guardian ad litem has been appointed, what are the scope of his or her duties? How does he or she go about making recommendations to the court? Will the guardian ad litem choose the parent with the better job?

  • Guardian Ad Litem: Scope of Duties
  • How Does the Guardian Ad Litem Make Recommendations (Unpacking the Best Interests of the Child Standards)
  • Next Steps

Guardian Ad Litem: Scope of Duties

Washington law sets the standards and duties for a guardian ad litem appointed to your child custody case. There are some key things you may want to keep in mind regarding the guardian ad litem appointed to your case:

  • The guardian ad litem is not your child’s lawyer, nor is the guardian ad litem your
  • Ultimately, the guardian ad litem’s role is to make recommendations about the best interests of the child. The guardian ad litem must uphold standards of ethics and avoid any appearance of unfairness or conflict of interest. The GAL must be independent, objective, and fair.
  • The guardian ad litem’s job is to review and investigate all information in your case and to speak to you, your spouse, and if appropriate, your child or children. The guardian ad litem can look into parents’ criminal records, legal records, and other important records. The GAL may request written statements from people who know you or your children and may interview counselors and other professionals who work with you and your children. The GAL may also observe the homes of both parents or ask to see the parents and children in the GAL’s office.
  • The guardian ad litem will file a written report to the court showing their findings, allowing both you and your former spouse to review the findings and dispute them if needed. Along with written reports, the guardian ad litem’s responsibility includes maintaining documentation to substantiate any claims made in the report.
  • The guardian ad litem must identify himself or herself when conducting interviews or other investigations and has a responsibility to only make disclosures to the court. In cases of domestic violence or abuse, a guardian ad litem may seal part of a report to protect the privacy of vulnerable individuals.

If you believe a guardian ad litem violated these rules, the courts do offer procedures for filing grievances. And if you disagree about a specific guardian ad litem being appointed to your case, you could also make a complaint to the court. For example, some GALs may not have had specific training with cases involving domestic violence and you may have the right to request a GAL who has had experience or training with these kinds of situations.

While these guidelines offer a general outline of a guardian ad litem’s scope of duties, they tell us nothing about how exactly a guardian ad litem makes recommendations to the court in a custody case. To delve into this topic more deeply, we need to explore an even more complex and hazy topic: “the best interests of the child” standards, which are the basis by which judges make custody decisions when they are taken to court.

How Does the Guardian Ad Litem Make Recommendations? Unpacking the Best Interests of the Child Standards

A guardian ad litem may perform an in depth investigation of your child’s situation to make a recommendation in the child’s best interests to the court. In the process of investigating the case, the guardian ad litem may consider each parent’s wishes, the child’s wishes, parental history of child abuse or neglect, medical records, teacher reports, school records, and may even interview people who know you or your spouse to get an idea of your child’s routines, lifestyle, and each parent’s parenting style. The guardian ad litem may observe you and your children in your home. If counselors or therapists are involved in your case, the guardian ad litem may speak to them or seek medical records.

The guardian ad litem will consider which household or home environment can provide the greatest stability for the child. The GAL may also consider each parent’s mental health history, criminal history, and look for evidence of substance abuse issues or domestic violence. While the guardian ad litem will take into account what the parents want and what the children want, ultimately the guardian ad litem’s job is to make recommendations that are in the child’s best interests.

Unfortunately, when it comes to “the child’s best interests” this standard can often be quite vague. According to RCW 26.09.002, “the best interests of the child are served by a parenting arrangement that best maintains a child’s emotional growth, health and stability, and physical care. Further, the best interests of the child is ordinarily served when the existing pattern of interaction between a parent and child is altered only to the extent necessitated by the changed relationship of the parents or as required to protect the child from physical, mental, or emotional harm.”

Notice that RCW 26.09.0002 doesn’t mention anything about a parent’s employment. This doesn’t mean that employment won’t be a consideration. After all, a parent’s employment could affect a child’s stability.

In most cases, the guardian ad litem will likely look at which parent was more involved in parenting the child and make decisions to preserve this arrangement. Another factor will involve looking at which parent will be most likely to support the child’s relationship with the other parent. The more cooperative parent may be viewed favorably in this light. Fighting for sole physical or legal custody without good cause could harm your case. Of course, if there is a history of sexual or physical abuse, sole legal or physical custody may be necessary.

Yet, with the exception of cases involving physical, sexual, or emotional abuse, determining the situation that can result in the greatest stability can often be a subjective process. According to the International Journal of Law and the Family, the best interests of the child standard has a great deal of “indeterminacy, vagueness, and open-endedness” and because of this vagueness, “the best interest approach depends upon the value of the decision-maker.”

The researchers writing in the International Journal of Law and the Family investigating the “best interests of the child” standard found that the standard is highly culturally determined. “Quite divergent decisions with regard to children are made in different cultures all of which are plausibly justified by the best interests standard.”

Custody decisions are problems for which there is no determinate answer. When making custody decisions, a guardian ad litem may have knowledge of the options available, but he or she cannot possibly know the ultimate outcome each of those options will have on the life of the child. Placing a value judgement on each potential option and outcome is also a highly subjective process. “Child custody cases involve the imprecise exercise of appraising peoples’ characters and dispositions and then trying to work out how each possible decision might affect them and thus indirectly the child.”

Let’s look at an example about how the notion of stability can be variously interpreted. Under RCW 26.09.002 one of the qualities that are to be considered in weighing the best interests of the child is “stability.” Let’s imagine two parents are going through a divorce. One parent has a traditionally stable job as a teacher. This parent can offer what might be perceived as a more predictable and therefore more stable schedule for the child. The other parent is a highly compensated musician who makes millions of dollars a year, and therefore can provide a great deal of financial stability for the child. The musician’s schedule is not as predictable. The musician occasionally leaves town for gigs and often works evenings. Which parent can offer the child greater stability? If you think of financial stability as the most valuable quality for the child, then you might think that the musician has the “better” job and therefore can offer the best stability. But if you think a stable schedule is more important for the child, then the lower earning teacher might have the “better” job in your eyes.

Of course, a guardian ad litem would look at other factors. (Which parent was more involved in parenting the child, for example.) If the child is a teenager and wants to pursue a career in music, perhaps the musician parent might be seen as offering the child the better home for “emotional growth.” But, this again would have to be weighed against the teacher parent’s training in the education of children, which could also be argued to be of great benefit to the child, especially if the child is younger. Should the guardian ad litem ask himself or herself what option will provide stability to the child at age 5 or at age 15?

Put other combinations of jobs on the table. A pastor and a hedge fund manager. What’s more important, the child’s religious upbringing or the child’s future economic productivity? A professor at a university with a rich intellectual life or a nurturing stay-at-home mom. What’s more important, nurture or intellectual growth? Assuming the guardian ad litem is only considering the parent’s employment, it is easy to see how different people will make different decisions. Fortunately, employment is never the only factor considered.

But even when multiple factors are considered, as the facts reveal themselves, further value judgements must be made.

The guardian ad litem is not a parent, nor is it possible to expect a guardian ad litem to share the values of the parents. International Journal of Law and the Family notes, “It follows that objectively identical problems will be decided differently…” especially when people with different values are put in a position to make decisions.

This critique of the “best interests of the child” standards has been echoed elsewhere. In the journal of Theoretical Medicine and Bioethics, the standard was critiqued on the basis that the standard was “ill-defined and inconsistently…applied.”

As the International Journal of Law and the Family explains, “In the West at least, this century has seen a collapse in consensus over certain kinds of values to do with conformism and individuality, material success and personal contentment, gender differentiation and so on.” If a guardian ad litem has bias against certain groups, these biases could impact his or her decision. Social justice considerations need to be taken into account.

Because the guardian ad litem is appointed by the court, parents may not have a say in who will serve as the guardian ad litem in their case, though parents could make a complaint with the court regarding the appointment of a guardian ad litem or complaints about a specific person being appointed, especially if there is a concern for bias.

Next Steps

Because of these concerns, divorce lawyers will often urge parents to resolve their custody issues outside of court. The collaborative divorce process involves both parties signing an agreement to avoid taking their case to court, and therefore allows parents to avoid the prospect of having a guardian ad litem appointed in the first place. Truce Law is a Seattle, Washington collaborative divorce law firm that can help you draft a parenting plan that works for your family, based on what you believe is in the best interest of your child.

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