In a custody matter, can a Guardian Ad Litem (“GAL”) serve as both an attorney for the minor child involved in the custody dispute, as well as an investigator for the Family Court?
In 2011, Getter petitioned to modify custody for the parties’ only remaining minor child. The Family Court subsequently appointed a GAL for the minor child. The GAL filed a report based on interviews and a visit to the residence of the custodial parent, Morgan. In the report, the GAL ultimately recommended the minor child be allowed to relocate to Florida and live with Getter.
At the hearing, Morgan requested to cross-examine the GAL about the report favoring Getter. The Family Court denied this request and the hearing progressed. Morgan moved to strike the GAL’s report, and the Court deferred ruling on the motion. Ultimately, the Court gave Getter joint custody with primary physical custody. The minor child relocated to Florida with Getter. Morgan appealed the decision, but during the appellate process the minor child turned eighteen.
Mootness and Public Policy Exception
The Court first looks to the issue of mootness, as the minor child turned eighteen making moot any decision on the child’s custody. The Court formed a public interest exception to the mootness rule, differentiating it from the capable of repetition rule used in prior cases.
The Court sets out a three-prong test for the public interest exception to mootness. “(1) The question presented must be of a public nature; (2) there must be a need for an authoritative determination from the Court for the future guidance of public officers; and (3) there must be a likelihood of future recurrence of the question.”
The Court then holds that the elements of the public interest exception are present in the current case, as (1) the proper role of a GAL is a “substantial question of a public nature;” (2) Family Courts addressing custody would benefit from future guidance; and (3) issues regarding the proper role of GALs are certain to occur in many other cases and will likely evade review, especially when the dispute involves older children.
Proper Role of GALs in Custody Disputes
Due process, as set out in Mathews v. Eldridge, requires a “(1) private interest affected by official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value of additional or substitute procedural safeguards; and (3) the Government’s interest additional or substitute procedure would entail.”
In this case, (1) there is a clear liberty interest in the care and custody of a minor child; (2) the Court’s actions significantly altered Morgan’s ability to care for and have custody of the minor child, and (3) the State has no interest in disallowing the testimony of the GAL. Based on this analysis, the Court concludes that Morgan’s due process rights include the right to cross-examine the GAL in the custody proceeding.
The Family Court erred by allowing the report and disallowing a cross-examination of the GAL authoring the report, violating Morgan’s due process rights. The Court held that due process is compromised when attorneys serve as both investigators for the court and attorneys for minors involved in custody disputes. Because of this inherent conflict, the court holds that a GAL cannot serve as both an investigator for the Court and an attorney for the minor child.
Instead of using a GAL as an investigator, a Family Court may appoint a de facto Friend of the Court (“FOC”) to serve as an investigator under KRS 403.300(1) and FRCPP 6(2)(f). The investigator can file a report, but must be available for cross-examination. Alternately, a Family Court may appoint a GAL to represent the child under FRCPP 6(2)(e). As a representative of the child, the attorney cannot put her own credibility at issues.
The Court also makes a distinction between an attorney representing the child’s best interest from an attorney representing the child’s express interest. The Court holds a GAL should represent the child’s best interest as children have diminished capacity. An attorney is authorized under SCR 3.130-1.14(b) to reasonably protect a client with diminished capacity. Thus, a GAL may balance the wishes of a child with the child’s best interest.
Family Courts will need to alter current practices, appointing a de facto FOC to investigate on behalf of the Court and/or appointing a GAL to represent the child. The appointment of both a de facto FOC and GAL are available to the Court, but are not requirements for proceeding in a custody matter.
Digested by Elizabeth M. Howell