What is a guardian ad litem under the Texas Family Code?

A guardian ad litem (often abbreviated as GAL) under Texas law represents the interests of an involved individual but is not that person’s attorney. A guardian ad litem represents the best interests of a person who is unable to advocate for their own interests, such as a child. The person the guardian ad litem represents is referred to as a ward. The GAL is not an attorney for the ward and is not beholden to his or her wishes. The guardian ad litem purely represents the interests even if they conflict with the wishes of the ward.

Guardians ad litem are appointed under Texas law in family law proceedings, proceedings under the Texas Estate Code and for settlements of minor civil claims, such as personal injury claims. In family court proceedings, such as a divorce or custody suit, a guardian ad litem may be appointed by the family court at the request of a party, as required by statute, or at the judge’s discretion. In a divorce or custody suit the court must consider the best interests of the children. That may be difficult to assess if the parents have competing ideas of what is best for the children. Rather than force children to appear in court the guardian ad litem voices their interests.

If you are a party to divorce or custody suit it may be helpful to your children to ask the judge to appoint a guardian ad litem. Today’s post will discuss the role of a guardian ad litem, how it differs from other people involved in a family law proceeding in Texas and considerations whether you should ask for an appointment in your case.

Guardian ad litem topics

      • What is the role of a guardian ad litem in a Texas child custody case or divorce with children?
      • Does the guardian ad litem have to interview my child?
      • Do I have to do what the guardian ad litem says?
      • How is the guardian ad litem the guardian of the child instead of a parent?
      • Why can’t a parent represent the child’s best interests to the judge?
      • How do you decide a child’s best interests?
      • How do the child’s best interests differ from the child’s desires?
      • The guardian ad litem’s report and important considerations
      • How does a guardian ad litem’s testimony affect my custody proceeding?
      • Do I have to pay for a guardian ad litem?
      • What is a guardian ad litem under the Texas Estates Code?
      • How do you becomes a guardian ad litem under the Texas Family Code?
      • What is the difference between a guardian ad litem and an attorney ad litem?
      • How do you ask for a guardian ad litem in your child custody case or divorce with children?
      • Do you need a guardian ad litem for a custody case or divorce?
      • Should I ask the court to appoint a guardian ad litem?

What is the role of a guardian ad litem in a Texas child custody case or divorce with children?

A guardian ad litem in a Texas child custody case or divorce with children is a special appointment to represent the child’s best interests to the court. Texas Family Code section 107 explains the rights and duties of a guardian ad litem to the child and the court. The guardian ad litem is not an attorney for the child (unless also appointed to both roles) and does not participate in the lawsuit like an attorney or party. It is a special participant acting on the judge’s behalf.

Outside of cases requiring a GAL by statute, a guardian ad litem is a person appointed by a family court to represent the child’s best interests in a custody proceeding when parents and their family law attorneys cannot agree upon a custody arrangement. In appointments made at the judge’s discretion the court usually appoints somebody with medical or psychological expertise with children and custody arrangements.

A GAL’s duties under the Texas Family Code

The guardian ad litem’s duties principally involve investigating the welfare of the children and the people involved in their lives. The specific duties required of a GAL differ slightly with the type of case involved but generally a GAL has broad authority to investigate the children’s well being including:

  • Interviewing the children;
  • Observing the children at home and interacting with other people;
  • Interviewing parents and other family members;
  • Interviewing other people around the children such as teachers, preachers, coaches and friends;
  • Obtaining medical and educational records; and
  • Inspecting the home and other places the children frequent.

After investigating the children and their environment, the GAL must consider options for custody that best serve the children rather than the parents. The guardian ad litem will likely prepare a report and testify about his or her findings and conclusions. This makes a GAL an important part of the child custody case or divorce with children. They are influential with judges and juries so how you interact with a guardian ad litem can have a big impact on your case. The guardian ad litem is essentially the judge’s eyes and ears outside of the courtroom and often drives the judge’s decision on what custody arrangement to order.

Does the guardian ad litem have to interview my child?

Yes. Under Texas Family Code section 107 the guardian ad litem has several duties required by statute. Among these duties is a requirement that the guardian ad litem interview your child if the child is at least four years old. Practically, it would be difficult for the GAL to assess the child’s best interests without speaking with the child. After all, the child is an important source of information about his or her feelings, experiences and relationships. If the guardian ad litem only hears from people around the child but not the child it is more likely that the GAL will only hear what the interested parties wants them to hear.

Do I have to do what the guardian ad litem says?

A guardian ad litem is not empowered to order anybody to do anything. The guardian ad litem is a representative of the judge and likely will report to the judge if you, as a parent, either do not comply with a court order or interferes with another involved person’s rights or duties under a court order. A guardian ad litem may have the right to ask you to perform certain steps such as:

  • Drug testing;
  • Counseling;
  • Parental education classes;
  • Attend safety courses;
  • Undergo rehabilitation for drug or alcohol abuse;
  • Improve home safety or cleanliness conditions;
  • Follow a schedule for the child’s activities; and
  • Attend school functions or meetings.

Although the GAL cannot require you to do any of these tasks it may be valuable to follow the GAL’s requests. The GAL may report back to the judge that the request was made but you chose not to comply. As a parent you want the guardian ad litem to view you as a positive part of your child’s life. If the GAL considers these requests influential you should consider them seriously.

Of course, you should also talk to your attorney about these requests. Your family law attorney may have good reason to advise you not to comply–especially if the request is unreasonable. If the GAL makes unreasonable requests then your attorney may ask the judge to speak to the GAL or replace the GAL.

How is the guardian ad litem the guardian of the child instead of a parent?

A guardian ad litem is a guardian at law meaning that person is only a guardian for a specific legal purpose. The guardian ad litem is the guardian of the child’s best interests within the legal proceedings. The GAL is not responsible for meeting the child’s daily needs or parenting the child.

Within a custody suit there may be other people who also act as a guardian for the child or to ensure the child’s daily needs are met. These people are conservators–either temporary or permanent–who perform parent-type duties for the child when a court has decided one or both parents are unable to perform these duties for the child.

Why can’t a parent represent the child’s best interests to the judge?

A parent may have the child’s best interests at heart but the parent has a separate interest in his or her own relationship with the child. The parent might be pure at heart but unintentionally inject his or her own thoughts, experiences and interests into advocating the child’s best interests. Often parents intentionally inject their own interests into their view of the child’s best interests. After all, most parents want to have a relationship with their children and have meaningful contact with them. It is natural for a parent to want to advocate for the parent-child relationship.

Guardian ad litems are neutral representatives to the court

The guardian ad litem, on the other hand, is a neutral individual with no attachment to any of the family members involved. That allows the GAL to consider the child’s interests without interjecting his or her relationship with the child into the legal proceeding. It is difficult for parents to completely disconnect their relationship with their child and make objective decisions. It would be unfair for the judge to ask a parent to do that when the parent also wants to advocate for the parent-child relationship.

Practically, it may be harmful to allow one parent to represent the child’s interests to the court. In that scenario the court has already picked a side in a dispute and the other parent will likely feel the process is unfair and stacked against him or her. That may harm the relationship with that parent and the child and most likely will harm the relationship between parents.

How do you decide a child’s best interests?

In a custody proceeding parents usually believe they know and represent the child’s best interests. As a result, judges face competing views of what is best for the children involved. The Supreme Court of Texas in 1976 determined a list of factors intended to help judges navigate these dangerous waters. Holly v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors include:

  • The child’s desires;
  • The child’s age, emotional and physical needs now and in the future;
  • Any emotional and physical danger to the child now and in the future;
  • The parental abilities of the individuals seeking custody;
  • The plans for the child by those individuals and the stability of the home;
  • The plans for the child by the agency seeking custody and the stability of the proposed placement;
  • The acts or omissions of the parent which indicate the existing parent-child relationship is not a proper one;
  • Any excuse for the acts or omissions of the parent.

Note that the Holly factors apply to the best interests of the child, not the parent. Dupree v. Tex. Dep’t. of Protective & Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.–Dallas 1995, no writ).

Although the child’s desires is one factor a guardian ad litem is not bound by the child’s requests and often the other factors outweigh the child’s interests when they conflict. A guardian ad litem cannot discount a child’s desires completely but no single factor automatically outweighs the other. Deciding how to balance the Holly factors is a matter of judgment by the guardian ad litem as well as the judge or jury. Before a meaningful analysis the GAL must adequately investigate the facts of the custody proceeding and apply the Holly factors to the specific facts of the case.

How do the child’s best interests differ from the child’s desires?

Usually children want to be with their parents but that does not always mean that is best for their well being. Children generally have strong emotional bonds with their parents and want to be happy with them. They don’t understand the ways parents can be harmful, even unintentionally, to their health, safety and development. Teens may want to be in an environment with an unhealthy lack of structure or lacking the ability to care for their daily needs. If courts only paid attention to a child’s desires then there would rarely be change to unhealthy home environments.

The child’s best interests involves a broader set of goals. While the Holly factors include considering the child’s desires most of the factors involve ensuring the health and safety of the child in a stable home. The child’s desire to be home with parents will not dictate the guardian ad litem’s decision especially when the home is clearly not ready for the children to return. In most CPS removals or terminations the long term goal is to transform the home into a positive environment so the children can return if possible. The guardian ad litem should weigh opposing the child’s desires ad the emotional effects of keeping the children away from the parents against the risk of harm returning the children to an unsafe or unhealthy home. In most cases the emotional risk to giving parents visitation with the children instead of returning them home is less than returning them to a home that justified removal in the first place.

In non-removal child custody cases

In non-removal custody proceedings a GAL might be in the position of deciding which family member should have custody of the children or how custody should be shared by parents or other family members. In those cases the guardian ad litem has a different but equally difficult task of picking winners and losers among the family based on what is best for the children. In these situations the child may not even want to pick one parent over another and the guardian ad litem may be stuck making that decision on other factors.

The guardian ad litem’s report and important considerations

Under Texas Family Code section 107.002 a guardian ad litem has a lengthy list of duties and powers discussed above. Perhaps the guardian ad litem’s most important duty is to investigate the facts of the case on the judge’s behalf. Before a final hearing in a contested case a non-attorney GAL may present a report to the court and parties of its findings. Depending upon court rules in your court, the GAL may be required by the court to present a report. In a nonjury trial the guardian ad litem will then testify to his or her findings either because a party called the GAL as a witness or the judge will allow the GAL to testify in the narrative. (Meaning the GAL can get up and testify without anybody asking questions to motivate testimony.) A GAL may be cross examined by any or all parties. The report itself will likely be one of the few pieces of evidence to make it to the judge’s chambers while he or she considers your case.

What goes into the GAL’s report

The guardian ad litem has wide latitude in determining the contents of the report. Under section 107.002(e) the report may include the GAL’s findings of the best interests of the children and the basis for that conclusion; however, that gives the GAL room to say virtually anything. A non-attorney GAL suffers no consequence for a report lacking substance, reaches an unreasonable position, or relies upon bad evidence or reasoning. The report may rely upon well meaning but incorrect facts of reasoning. In a nonjury trial or hearing the report reaches the judge even if the report relies upon inadmissible evidence.

One important consideration with the report is the timing of its delivery to the court and parties. Under the Texas Family Code a GAL must submit the report ten days before trial unless a scheduling order or local court rule says otherwise. In some courts the GAL must submit it earlier under the rules or standard scheduling order language. Parties and their attorneys should request the report submitted earlier in the process if possible. The longer you have to review the report the more time you have to locate contrary evidence or consider issues with the reasoning presented.

A GAL can testify to the contents of the report

If the GAL’s report is unfavorable it is worth considering moving your case to a jury instead of the judge. A jury may still hear the contents of the report and hear the GAL’s testimony; however, any portion of the report presented to the jury is subject to the Texas Rules of Evidence. That means the GAL cannot testify to hearsay or other inadmissible evidence. The GAL absolutely relied upon evidence and interviews conducted outside of court and likely upon evidence that would be otherwise inadmissible so that can avoid having some unfavorable evidence reach the jury. An opposing party would have to present the evidence in an admissible form under the Texas Rules of Evidence which may be difficult or expensive.

Bedford Divorce Lawyer for Divorce in Tarrant County and Dallas County

How does a guardian ad litem’s testimony affect my custody proceeding?

In addition to filing a report to the judge in your custody proceedings the guardian ad litem often will testify to his or her investigation, conclusions and the reasoning for those conclusions. The guardian ad litem’s testimony can be a powerful factor in your custody case. The judge picked the guardian ad litem so there is a likelihood the judge or jury will give meaningful weight to what the GAL has to say.  In my experience judges rarely disagree with a GAL’s recommendations. The GAL is likely the only neutral witness in a hearing which lends credibility other witnesses or parties may not enjoy. Under the Texas Family Code a party to a custody hearing may call the guardian ad litem as a witness. If no party calls the GAL as a witness then the judge can call on the GAL to testify in the narrative. All parties can cross examine the GAL as a witness.

Another important consideration is that the guardian ad litem may be the closest a judge or jury hears from your child. Texas law and judges disfavor bringing children to testify in court especially when that testimony may put a child at odds with a parent. Most likely your children will not testify at a hearing or trial and if they do it will be limited. The guardian ad litem will testify and in most cases can testify to what your children told him or her and what the GAL saw around your children. If the GAL is opposed to your position the testimony may sound a lot like your children also disaree with you. The guardian ad litem is likely the closest voice to your children in the courtroom.

Should my attorney call the guardian ad litem as a witness?

Whether to call the GAL as a witness or only cross examine the GAL is a strategic consideration for your attorney. Your attorney may want the GAL to appears to be on your side as a witness but that assumes the testimony will be favorable. A GAL who testifies against your goals can seriously impair your case.

Because the guardian ad litem will almost certainly testify and will be taken into serious consideration it is important to take steps before a hearing or trial to establish a positive relationship with the GAL. If the guardian ad litem has a negative attitude about you or your goals before the hearing or trial then that is not going to change on the stand. You should talk to your attorney throughout your custody case about cooperation with the GAL and how that plays into the larger strategy in your case.

Do I have to pay for a guardian at litem in Texas?

You will potentially have to pay the court a fee for appointing a guardian ad litem. In state initiated proceedings, like a DFPS investigated termination or removal of children from a home, you typically will not pay a fee to the court for the appointment. In a divorce or custody suit where a private party initiated the case then you may have to pay a fee. The judicial system in each county or district determines the fee schedule depending upon the type of case and complexity of issues involved. For example, in Travis County the fees per side run from $300-$2700. If the court appoints an attorney as a guardian ad litem then typically the attorney will be paid an hourly rate by the court and that may result in more expensive fees per side. The court clerk in your case or your attorney can explain the fees you may expect to pay.

What is a guardian ad litem under the Texas Estates Code?

Recall that a guardian ad litem under Texas law represents an individual’s best interests when the judge believes that person is unable to advocate for their own best interests. An “incapacitated person” might be a child, who as a matter of law lacks the ability to advocate for themselves, or an adult who lacks the mental or physical capacity to be their own advocate. Probate proceedings under the Texas Estates Code include proceedings that establish guardianship over an incapacitated person. Guardianship under the Texas Estates Code often allows an adult to make legal or health care decisions for an adult who cannot take care of themselves.

This form of guardianship gives another person legal authority to act on another person’s behalf under the terms of a guardianship order. There may be a guardian ad litem appointed in a probate proceeding to determine if this more broad form of guardianship is necessary and what powers the guardian should have. The guardian ad litem’s duties and powers under the Texas Estates Code only exists within the realm of that proceeding.

Like a GAL under the Texas Family Code, a GAL under the Texas Estates Code has specific duties and powers granted by the statute. Similarly, in both cases a GAL’s involvement only exists within the realm of that proceeding and expires at the conclusion of the case.

How do you become a guardian ad litem under the Texas Family Code?

Under the Texas Family Code a guardian ad litem must meet one or more requirements and meet the court’s specific requirements. Under Texas Family Code section 107.001(5) a guardian ad litem includes:

  • a volunteer advocate from a charitable organization described in the Texas Family Code;
  • a professional, other than an attorney, who holds a relevant professional license with appropriate training;
  • an adult with the competence, training and expertise to represent the child’s best interests;
  • an attorney ad litem appointed to serve in a dual role.

Each family court has its own rules regarding who it will appoint as a guardian ad litem. In some family court proceedings the judge will appoint a volunteer advocate, such as a volunteer with Court Appointed Special Advocates (CASA) who receive training from the organization. If an attorney ad litem has been appointed for the child then sometimes the judge will give that attorney both responsibilities. It is less common for a court to appoint other professionals or nonprofessionals to this role simply as a matter of logistics.

Attorneys in Texas may only receive appointments as a guardian under any Texas code if they receive a guardianship certification from the Texas Judiciary. This ensures that the attorneys also have training and expertise specific to the duties of a guardian which are not always the same as an attorney. Courts who appoint attorneys as GALs usually also require attorneys to meet other duties, such as carrying malpractice insurance or have prior experience in family court proceedings.

Custody attorney Bedford, Texas

What is the difference between a guardian ad litem and an attorney ad litem?

Under the Texas Family Code section 107 the court can appoint several different types of special appointments to assist the judge in investigating and understanding you case. In addition to a guardian ad litem a judge can also appoint an attorney ad litem. An attorney ad litem is, “an attorney who provides legal services to a person, including a child, and who owes to the person the duties of undivided loyalty, confidentiality, and competent representation.” Texas Family Code section 107.001(2). An attorney ad litem is essentially a court appointed attorney like a public defender but for a custody proceeding.

In a CPS termination case or proceeding to make CPS the conservator of a child, the judge must appoint an attorney ad litem to advocate for the child involved in the suit. That means the attorney ad litem represents the child as a client. While a guardian ad litem represents the child’s best interests to the court, the attorney ad litem represents the child like any other client. The attorney ad litem advocates for what the child wants even if that is not necessarily in the child’s best interests. Often in these CPS lawsuits the court will also appoint an attorney ad litem for the parents because the parents tell the court that they cannot afford representation. Under Texas law a parent is entitled to representation in a CPS termination.

A guardian ad litem has a duty to investigate and assess the best interests of the child even if they oppose the desires of the child. An attorney ad litem has a duty to investigate and advocate the child’s desires even if they are not in the best interests of the child.

What is an attorney ad litem supposed to do?

Generally an attorney ad litem for a child has all the same ethical duties to a client that the attorney would have for any paying client. Specifically Texas Family Code section 07.003 describes basic responsibilities to include:

  • Interview the child in a reasonable time after the appointment;
  • Interview people with significant knowledge of the child’s history and condition;
  • Interview the parties of the suit (e.g. parents, other family members who may be named conservators of the child);
  • Understand the child’s goals and how to express them to the court;
  • Investigate other relevant facts;
  • Obtain and review records relating to the child;
  • Participate in litigation;
  • Be trained or have experience in child advocacy.

Texas Family Code section 107.004 describes additional duties involving advising the child and meeting with the child before each hearing.

Can my attorney ad litem also be my guardian ad litem?

Yes, sometimes judges will appoint the same person to fill both roles. This is more common with young children who are unable to articulate what they want or may be unable to express clearly answers to questions that put parents at odds with each other or even places the child at odds against both parents. A judge may appoint the same person to fill both roles under any circumstances in which both appointments are necessary. A dual role appointment can eliminate the overlap in investigation and ensure the guardian ad litem has legal expertise in addition to experience or training advocating for children.

Issues with dual role appointments of an AAL and GAL

This dual role appointment can be problematic for the child. Often children do not want what is in their best interests. If the dual role attorney determines the child’s desires and best interests are not aligned then the attorney has a conflict in their obligations. If the attorney advocates for the child’s desires then the attorney fails to represent the best interests to the court. If the attorney advocates for the best interests then the attorney fails to advocate for his or her client. An attorney always bears ethical duties to a client so this situation creates an ethical dilemma for the attorney. If the two goals cannot align then the attorney must seek removal of both appointments from the court.

What do I do if I have problems with my attorney ad litem?

Sometimes attorneys appointed as an attorney ad litem don’t live up to their responsibilities to a child client. Common problems include:

  • Not recommending to the court what the child wants;
  • The attorney does not meet with the child;
  • The attorney does not interview important people involved in the custody proceeding;
  • The attorney does not respond to calls or emails.

If you are a child represented by an attorney ad litem then it is important for your attorney to work on your case and communicate with you. Without communication it is impossible for your attorney to understand your desires or effectively advocate for them to the judge. If you have problems with your attorney then you should try to let him or her know and give your attorney an opportunity to resolve the problem with you. If that does not help then you should let the judge or your guardian ad litem know there is an issue. If that still does not solve the problem then you can complain to the State Bar of Texas.

Your attorney may be doing honest work on your case even if it does not feel like it. TV and movies make lawsuits seem to happen quickly but in reality it is a slow process that involves a lot of work and cooperation of a lot of people. Sometimes other people involved in the process make your attorney’s work difficult. You may also want your attorney to do things or tell the judge things that cannot be done or would be harmful to your goals in the long term. If you feel like there is a problem you should talk to your attorney and let him or her help you understand what is going on.

How do you ask for a guardian ad litem in your child custody case or divorce with children?

If it is your choice to ask for an appointment in your child custody case or divorce with children then the process is relatively simple. The typical tool for this request is a Motion for Appointment of Guardian Ad Litem. Generally there is no specific form or language required for the motion. The family court website may have a preferred form or you may obtain one from your county law library. The court staff for the judge may be able to tell you if a form is available through the court in person or online. The Motion for Appointment of Guardian Ad Litem must be filed with the court and depending upon the judge you may even be able to propose the appointment to the judge orally during a hearing. If you hired an attorney then your attorney will handle this process for you.

If the Texas Family Code requires a guardian ad litem in your case then the judge or state agency will handle setting up the appointment for you. Similarly if the judge appoints a GAL automatically under his or her personal rules then typically the judge or the court staff will handle the process for you.

Do you need a guardian ad litem for a custody case or divorce?

In most custody cases or divorces with children a guardian ad litem is not required. Under the Texas Family Code a judge must appoint a guardian ad litem in a CPS termination or an adoption without a licensed adoption agency involved. Beyond these cases it is up to the discretion of the judge whether to appoint a guardian ad litem. Individual judges have their own rules about when they appoint a guardian ad litem. One or both parties may request a guardian ad litem by choice. Sometimes parties agree to a guardian ad litem or a less formal custody evaluator to act as a neutral investigator and come up with a neutral recommendation for a custody arrangement.

Whether to ask for a guardian ad litem or other appointment to help the court resolve your custody case or divorce with children is a strategic decision for your divorce or child custody attorney. You may think adding a seemingly neutral party will help your cause but you cannot control what a neutral advocate decides is best. It may not be the decision you want. Once you invite another voice to your custody case or divorce you rarely can get them back out. Their voice will likely carry a lot of weight in a hearing or trial so this is not a decision to make lightly. Sometimes having a neutral voice, especially a child psychology professional, involved can help streamline a case by letting the judge rely upon a neutral party to advise on what is appropriate for your children. In my experience most attorneys do not want a guardian ad litem involved if possible.

Should I ask the court to appoint a GAL?

Before asking whether you should ask the court to appoint a guardian ad litem you need to know whether the court will appoint a GAL without a request. Judges have discretion to appoint a guardian ad litem without request and some Texas judges will appoint a guardian ad litem or other special appointment automatically. In state initiated cases, like DFPS removals, judges must appoint a guardian ad litem. (They are also mandatory in an adoption without a licensed adoption agency involved.) Sometimes judges have personal rules that they always appoint a GAL when one or both parties make certain allegations, such as abuse or neglect, or if either parent does not have an attorney. In my experience courts that only hear family law issues, other than state cases, are less likely to appoint a GAL than courts of general jurisdiction where the judge hears any case within its jurisdiction and the judge may not be well versed in family law issues. The court clerk or your attorney should be able to tell you if this is an issue.

Also consider that any party to your divorce or custody suit can ask for an appointment so even if you don’t want a GAL another party may ask. You can oppose the request but often once asked a judge will appoint unless there is a very good reason not to.

If your judge does not automatically appoint a guardian ad litem then you should think carefully about whether to ask for an appointment. Remember that the GAL does not represent you or even your children. The GAL represents what he or she decides is in your best interests. You may pay for a GAL’s involvement in your custody case or divorce only to find out the GAL does not agree with you. There is no definite answer whether you should ask for an appointment. Every case is different and every judge is different. A GAL might be right in one case, wrong in another, or even seem like a good idea only to have it go poorly. An experience family law attorney who practices in your court is best equipped to weigh the pros and cons.

A GAL can bring value to your proceeding

A judge is more likely to agree to appoint a guardian ad litem when the GAL’s role as an investigator can help the judge move the case to a resolution more efficiently. The more factual disagreement exists between the parties to a divorce or custody suit the more likely it will help having a neutral party investigate on the judge’s behalf. Often parties in family law proceedings, even with attorneys, break down into word versus word allegations with neither side offering much more in evidence. That is not especially helpful for a judge. Having a more thorough investigation can help the judge decide who is more likely telling the truth.

This is especially true when:

  • Allegations of abuse, neglect, or addiction exist. Rarely will somebody admit to domestic violence, sexual abuse, drug abuse, alcoholism, abusive statements to the children about the other party, or withholding the children from the other parent. The GAL can investigate these allegations on the judge’s behalf.
  • Contradictory allegations. Often parents tell differing tales of important issues in the case. If the judge has to rely on word versus word testimony that may place the children at risk that a better liar prevails over the interests of the children which is a poor result. The GAL can investigate allegations and add meaningful context for the judge.
  • Information from the children. Judges generally do not want children brought to court to testify. Children often feel uncomfortable publicly saying bad things about a parent and may feel pressured not to tell the truth in court to help a parent. The GAL can speak with the kids in a more private environment and report to the judge what the kids said.
  • There is too much evidence to present at a hearing. With modern technology it is simple for parents to obtain photos, video and audio recordings parties may feel is important that is too much for the judge to review in a hearing or even before deciding a case. The GAL can review the evidence and help narrow the important issues down for the judge to more reasonably review evidence.

Practically having a guardian ad litem can make a case less costly for parties because presenting a large amount of evidence or combating allegations of abuse or addiction can be extremely expensive under the procedural rules to present that evidence in a hearing or trial. A more informal process of turning over evidence to the guardian ad litem can still put evidence in front of the judge without the time or cost.

But there are reasons not to want a GAL in your case

A guardian ad litem can also be a risk to parties given how much power they can wield to filter what evidence they present to a judge and how much the judge relies upon the GAL’s opinion. Some factors to consider:

  • Cost. Although a GAL can reduce the cost of presenting evidence they don’t come free in most courts and you may pay a substantial sum to involve another person in your case.
  • May not understand legal issues in your case. If the GAL appointed to your case is not an attorney then it is likely the GAL either does not understand the law involved or may misunderstand it. In a case involving technical legal issues that may confuse or derail focus on the technical aspects and fine details. The GAL may filter evidence or their opinion by what they think the Texas Family Code says rather than actual law.
  • A GAL can consider inadmissible evidence. The Texas Rules of Civil Procedure, Texas Family Code and Texas Rules of Evidence create a set of rules for what evidence can be presented and how to ensure quality evidence is considered in a family law proceeding. By letting the GAL explore inadmissible evidence and present opinions to the judge based on inadmissible evidence it can lead to judges unknowingly considering inadmissible evidence in your case.
  • The GAL may be less critical of evidence than a legal expert. If the GAL is a CASA or other volunteer they won’t have the same scrutiny that a judge or attorney would have of evidence. The GAL may be influenced by personalities or flimsy evidence and present it with more credibility to the judge than if the judge observed the evidence or testimony directly.
  • GALs bring their own preconceptions and motives to court. GALs, especially volunteers, are people with their own ideas about cases, people, attorneys and children. You can’t screen a GAL before appointment so you get whoever the judge picks. A GAL might have preconceptions, religious or political beliefs, or experiences that view the children’s best interests differently than the judge or the parents. In my experience volunteer GALs tend to be young and unpredictable or older and extremely opinionated.

Asking a judge to appoint a guardian ad litem is always a risky proposition with a high risk/high reward potential. You should rely upon your family law attorney to exercise his or her judgment to seek a GAL appointment. In my experience volunteer guardians ad litem are well meaning and considerate who take their appointment seriously; however, they are only human.

Hiring a family law attorney for your Texas child custody case or divorce with children

Many parents file child custody cases or divorces with children without hiring an attorney to help them navigate the family courts and advocate for their interests. Parents think they will go in front of the judge, tell their story and expect the judge will decide which person is right. That is usually not the case. Judges typically do not want to make long term decisions for children without involving experts involved. That might include legal experts, like your attorney, or parenting experts, psychologists and doctors. A child custody or divorce proceeding can quickly become expensive to the parties and if judges need to look somewhere for help it is likely they will appoint a guardian ad litem or other appointment to perform that role. As a parent your relationship with your children is important and you should hire a professional advocate to help protect that relationship.

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