What Is A Guardian Ad Litem And Can I Get One In My Divorce/Custody Case?

Posted by Leslie ShumakeApr 21, 20220 Comments

Guardian Ad Litems are becoming more important in divorce or custody cases in Mississippi than we have seen in the past.  Twenty (20), or even ten (10) years ago, it was relatively rare to see a Guardian Ad Litem appointed in family law cases.  Due to Appeals Court decisions interpreting the various cases on appeal in which a Guardian Ad Litem appears, we have a better understanding of the duties of a Guardian Ad Litem.  For purposes of this blog I use the abbreviation, GAL, when referring to the Guardian Ad Litem

It's best to begin with what a Guardian Ad Litem is not in child custody cases in Chancery Court.  A Guardian Ad Litem is not a person who is on your side, or the other party's side.   It does not matter which side requests that a Guardian Ad Litem be appointed.  It does not matter when or why the Judge chooses to appoint a GAL in your case.  The GAL is not on your side, or "their side."

Now, on to what a GAL is.   When a GAL is appointed by the Court in a divorce or other case involving custody, he or she has a duty and obligation to represent the minor child and use whatever investigative means they need to determine the best interest of the minor child.  The GAL must either file a written report to be reviewed by the Judge and the Attorneys, or testify at the trial.  The GAL at that point operates under the same rules as any other testifying witness. The GAL is subject to questioning and cross-examination by the attorneys for the parties.  The GAL can give his or her opinion as to who should have custody of the minor child or children, and can give the reasons for that opinion, but the Judge still makes the ultimate decision. 

It is important to understand that a GAL is an attorney who has taken the necessary number of hours of continuing legal education to qualify as a GAL.  The GAL has to be paid, and you can expect to pay $3,000.00 at a minimum to the GAL.   Who has to pay the GAL fees is up to the Judge hearing the case.  The Judge can order one of the parties to pay it or can order the parties to be equally responsible for the GAL fee.   Thus, it becomes a very practical decision for the parties on whether to ask for a GAL to be appointed.  Frankly, many of our clients simply cannot pay for the GAL.  (There is a process for the County to pay for a GAL in case of indigent clients, but I have rarely seen that ordered.) 

When a GAL is appointed is also an important concern.  Under Mississippi Law, when there are allegations of child abuse or neglect by one of the parties, or if the Judge decides during the proceeding that there are legitimate child abuse or neglect concerns, it is mandatory that a GAL be appointed.  I have personally been involved in more than one case wherein a Judge stopped a trial in the middle of someone's testimony and ordered that a GAL be appointed.  In those cases the witness on the stand or one of the parties accused the other of child abuse.  Things then came to a screeching halt until the GAL could investigate and submit his or her report, which took months.  The trial then picked up where it left off, four (4) months later.     

The Judge can also order a GAL to be appointed in his or her discretion in custody cases wherein there are no charges of abuse or neglect.  Again, I have not been involved in such a case, but the law does allows a Judge to do so, and can even allow the GAL to withdraw from the case without submitting a written report or testifying at the trial.

Thus, there are usually important consequences for at least one of the parties when a GAL is involved.   The GAL may make a recommendation as to who should have custody or leave that up to the judge, after giving his or her opinions and findings.  The Judge is always free to disagree with the GAL recommendation and rule that the opposite party should get custody.  But, keep in mind that if the GAL makes a recommendation as to who should have custody and the Judge decides not to follow that recommendation, the Judge must state on the record the reasons for his or her not following the GAL recommendation.