The Child's Voice: Understanding Guardian Ad Litems in Custody Cases • Your Divorce Case
In this episode of our Your Divorce Case series, Seth and Pete explore the crucial role of Guardian Ad Litems (GALs) in custody cases. This episode breaks down how these court-appointed representatives work to protect children's interests during custody disputes, while navigating complex legal challenges like hearsay rules that can limit their effectiveness.
The discussion centers on when and why courts appoint GALs, how they gather and present information, and their impact on custody decisions. Seth and Pete examine the limitations GALs face when presenting evidence from teachers, medical professionals, and other third parties, offering practical solutions for overcoming these obstacles. They also provide valuable insights into how parents can effectively work with GALs, including proper communication strategies and the importance of showing balanced perspectives about custody challenges.
Questions we answer in this episode:
When should you request a Guardian Ad Litem in your custody case?
How can hearsay rules affect your GAL's effectiveness?
What role do GALs play in the court's final custody decisions?
Key Takeaways:
Understanding hearsay rules is crucial for effective GAL testimony
Successful GAL relationships require honest, organized communication from parents
Courts heavily weigh GAL recommendations, though they're not bound by them
This episode provides essential knowledge for parents navigating custody disputes. Whether you're considering requesting a GAL or have been assigned one, understanding their role, limitations, and the legal framework they operate within can significantly impact your case's outcome. Seth and Pete's practical advice offers valuable guidance for parents in the divorce process.
Links & Notes
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Pete Wright:
Welcome to How To Split a Toaster, a Divorce Podcast About Saving your Relationships from True Story FM.
Today we're talking about your Toaster's next gig, representing the best intentions of the smallest waffles.
Seth Nelson:
Welcome to the show everyone. I'm Seth Nelson. As always, I'm here with my good friend Pete Wright.
Today we're talking about Guardian ad Litems. Who are they? What do they do? Who do they represent? Are they on your side or not? What's going on with those people Pete?
Pete Wright:
It seems to me that they are faculty at Hogwarts. That's what it sounds like.
Seth Nelson:
Well, and thank you for joining us today. That's a wrap.
Pete Wright:
That's it?
Seth Nelson:
You touched it. Crushed it.
Pete Wright:
That's right. I'm a middle-aged white man. Let's talk about Gryffindor.
Seth Nelson:
It's a great concept, A Guardian ad Litem and what they are are individuals, neutral third parties, that are supposed to help the judge gather information, write a report, come to court and say, "Judge, here's everything that I learned. I did an investigation, I wrote a report. The parents gave me a list of people to talk to: babysitters coaches, friends, school teachers, grandparents, aunts, uncles," anybody that's seen you interact with the kid, "And here's what I think is best."
Maybe they reviewed medical records, maybe they reviewed school records, they talk to the child, they go to the home or the park or the zoo, and they watch the parents interact with the child, and it's supposed to spend hours and hours and hours of looking at all this stuff, because as we know in the court system, the judge doesn't have hours and hours and hours to do all this.
And then you get the report, you put them on the stand and they say, "Judge, here's what I think."
Sounds like a great idea, right?
Pete Wright:
Yes.
Seth Nelson:
Couple problems.
Pete Wright:
Okay.
Seth Nelson:
Check your local jurisdiction on this one.
In Florida, the evidentiary rule called hearsay still applies to a Guardian ad Litem.
Pete Wright:
Okay, you're going to have to detail that.
Seth Nelson:
We all know the word hearsay as people just use it in normal day life, but in the legal world, hearsay is a specific evidentiary objection. And that is, if I ask you as the Guardian, Pete, "What did little Johnny's teacher say about how he's doing at school?" The other side can say, "Objection, hearsay."
And here's what that means. I'm asking you what someone else said. So, that's an out of court statement because I'm asking you what that teacher said, not in the courtroom, outside of the courtroom, and I am offering it in court because we're sitting in the courtroom now.
Here's the trick to prove the truth of the matter asserted.
Pete Wright:
Sidebar, please, counselor.
If I'm the Guardian ad Litem, am I not operating as an agent of the court?
Seth Nelson:
Yes, you're appointed by the court with a court order.
Pete Wright:
So, why am I subject to hearsay? If I heard the teacher and took down that report of what the teacher said, why is that suddenly hearsay? I do not understand.
Seth Nelson:
Right. Because the law doesn't make sense in this area.
Pete Wright:
Oh, good. Okay. So it's not just me.
Seth Nelson:
It's not just you.
The guardian ad Litem is not deemed to be an expert and if you're an expert... Let's say you are an expert in appraising real property. You rely on hearsay in gathering your report, in gathering all the information you need to do an appraisal, because what does an appraiser do? He looks at comps, other properties, he goes to the public record, he looks at all this stuff. Those are all out-of-court statements that he's relying on for his, or hers, ultimate conclusions.
Pete Wright:
So, what's different about the guardian?
Seth Nelson:
They're not deemed experts in Florida family law.
Pete Wright:
Experts in what? What would they be expert... Listening?
Seth Nelson:
Right. Helping children, you know, what they're asked to do, right?
Pete Wright:
Yeah.
Seth Nelson:
So, there's a push in Florida family law to say that a guardian should be allowed to rely on hearsay and bring that to court because this obviously does not make sense.
Pete Wright:
It makes no sense.
Seth Nelson:
Okay.
And the reason why I'm dealing with this up front... Remember, out-of-court statement offered for the truth of the matter asserted, so when I ask you how is Johnny doing in school? I'm asking you to say, "Oh, he is got A's he's got B's, he's got C's, he's got D's," and I'm asking the court to believe that. I'm offering that information for the truth of the matter asserted. Okay?
Now, I'm just going to give people a little evidentiary trick here. If I say to you, "How is Johnny doing in his grades?" And the other side says, "Objection, hearsay," and the judge looks at me and says, "Mr. Nelson response," I'm going to say I'm not offering this answer for the truth of the matter asserted."
I'm not offering a judge to prove whether Johnny's getting A's and B's or to prove whether he is getting C's or D's. Judge goes, "Well, why do we care then?" I'm going to say, "I'm offering it for the effect on the listener," And you say, "He has D's and F's," and then I say, "What did you do next when you heard that?" You say, "I advised to get a tutor," so I'm not offering it that he really has D's and F's. I'm offering it because when you heard that, whether it's true or not, it had an impact on you, and you then said, "He needs a tutor."
Pete Wright:
Okay.
Seth Nelson:
You with me?
Pete Wright:
Well, I'm with you in practice and maybe not in concept. For whom is that statement made? The judge?
Seth Nelson:
Yeah, it's made because it was a question in court by a lawyer, and you're a witness and you have to answer, and ultimately it's for the judge because I'm trying to prove my case. They're trying to prove their case. Okay.
Pete Wright:
Right.
Seth Nelson:
So, now people are like, "We just spent five minutes talking about a guardian can't do anything."
Pete Wright:
Yes.
Seth Nelson:
Now there's exceptions to the hearsay rule. There's a lot of them. One of them is called a party opponent. If you're getting a divorce, you can say what your wife said or what your husband said, because they're a party opponent. So, they're the other side of the V.
Pete Wright:
Right. So, as long as you're talking about people who are involved directly in the case, you can say what you heard.
Seth Nelson:
Exactly. If you're the litigants, you can say what they said and okay, no problem.
Pete Wright:
But the kids are not litigants, so...
Seth Nelson:
Right.
Pete Wright:
... You don't get that privilege.
Seth Nelson:
Exactly.
So, that's why people are like, "Well, it's hearsay." Well, yes, it's technically hearsay, but there's an exception to the rule and therefore it's admissible.
Okay.
So, in Florida... And I spent a lot of time on this in Florida. Before you go after a guardian ad Litem, you need to check with the other side to see if they will agree to waive the hearsay objection because otherwise, you're wasting your time and money.
Pete Wright:
Because everything that you do is going to be hand waved away as hearsay.
Seth Nelson:
Except talking to the parents, because they're party opponents.
Which means when they look at a document, the kid's report card, that's an out of court statement. It's a report card, it's stating what his grades are. They can't even come in and say he's got A's and B's.
Pete Wright:
Now, wait a minute. Doesn't that... If it's an official record of a school, can't that be entered as evidence?
Seth Nelson:
It could be, but you have to call the record custodian of the school and then you get it in, and there's...
Pete Wright:
Official.
Seth Nelson:
... A hearsay for that.
So, yes, you can get into evidence, but if you don't put it into evidence, they can't testify about it. You have to get every single document into evidence, but then remember, they've already written their report because under Florida law, it's due 20 days before this, this, and that. There's all these rules. So, the report's written, so you have to get everything into evidence on the guardian ad litem first that they relied upon and then when you get the report in, they're going to say it's hearsay and you're like, "No, Judge, nothing in here is anyone else says. They only are going based upon the documents that are already in evidence." It's tedious.
Pete Wright:
Yeah.
Seth Nelson:
Okay.
Pete Wright:
Can we back up for just a hot second?
Seth Nelson:
Yeah.
Pete Wright:
Can you explain the circumstances under which you would find a Guardian ad Litem should be appointed in a Florida custody case?
Seth Nelson:
Perfect. That's right where I was going.
Pete Wright:
Okay.
Seth Nelson:
It's almost like we planned it, but we didn't.
Here's the deal. Why would you use a guardian when you need them? Okay, so assuming you can get the hearsay done, this is where you have information and both sides are just saying, "No, it's her fault." "No, it's his fault."
Typical example, 14-year-old child not going over to mom's. Mom says, "It's all dad's fault. Dad's not making her go. Dad's bribing her with this." Maybe, let's do it this way. A 15 in six months promised her to buy a car.
Pete Wright:
Right.
Seth Nelson:
Right? Does all this stuff. It's dad's fault. Dad's fault, dad's fault.
Dad's going to say, "I can't get this kid to go. This kid's pissed off at mom for X, y and Z." Can't do it. Not getting... It's not happening. Every interaction they have ends up poorly.
So, how do we know? We could bring the kid in. Judges hate that. And remember, in Florida law, there's 20 different factors. One of them is do you shield the kids from litigation? Okay, well, you bring the kid into litigation. That's not shielding them.
Pete Wright:
You are not shielding them. Yeah.
Seth Nelson:
Another one is, is the kid old enough and mature enough to have a preference? So those are in counterbalance with each other. So, you get a guardian to go talk to the kid and be like, "What's going on?" Right?
Pete Wright:
Do you find... In your relationship with guardians in these cases, do you find that the guardians do get someplace with the kids?
Seth Nelson:
Yes.
Pete Wright:
As a trusted third party?
Seth Nelson:
Yes. And that is a skill set in and of itself, because even though the parents aren't supposed to talk about the litigation, they're going to have to say, "Hey, there's this person called a Guardian ad Litem that's going to come talk to you to hear what you have to say that represents you.
Pete Wright:
Because in what way do you interact with the kids, as the attorney?
Seth Nelson:
Never.
Pete Wright:
Never. Okay. That's an important distinction.
Seth Nelson:
I have never spoken to a child in a custody case.
Pete Wright:
Right.
Seth Nelson:
Never.
Pete Wright:
Because notoriously you're known as hating children.
Seth Nelson:
Exactly. Especially my own.
Pete Wright:
Absolutely not true.
Okay, so that's an important distinction that it's the Guardian ad Litem can develop an important trusted relationship with the kids.
Seth Nelson:
That's right. And they do it fairly quickly. And sometimes it takes some time. And then you want meet the kid out of the office. You don't want to always meet them at the Guardian ad Litem's office, because some of the guardians will be mental health professionals, some might be lawyers. So, you go to a law office? When does a 14-year-old ever walk into a law office? That's can be intimidating. So, you got to build up the trust, and these guardians are really good at it.
And then sometimes they'll exchange phone numbers and let them text and communicate with kids, let them know they're there, but they make clear, "I'm here to hear what you have to say, see if we can solve any problem," so to speak, "But really I'm here to tell the judge what I think is best for you. But you get a voice. You get to tell me what you think is best, but I might challenge you on some of that. Like, 'I never want to go to mom's.' Well, let's talk that through. Have you tried this, this, and this?"
Pete Wright:
Some of what you're saying describes a relationship that I might expect a kiddo to have with a therapist.
Seth Nelson:
Yes, but the therapy is protected communication. With the guardian it's not.
Pete Wright:
Okay.
Seth Nelson:
If a child is going to a child psychologist or mental health professional for counseling, that's all protected. You don't get that. And the concept there is pretty obvious. You want them to speak freely. They're not going to speak freely if they know if they say something to them and the person's going to turn around and say, "I really like mom, but dad offered me a car."
Pete Wright:
Yeah, right.
Seth Nelson:
Right.
Pete Wright:
That goes to the question of trust, though. The child knows, presumably, that their relationship with the Guardian ad Litem is public to the stage of the case.
Seth Nelson:
Yes, and that's where building the trust is... "Look, I'm here to advocate for what I think is best, but you need to be straight with me."
But the guardian also watches the interaction with the parents and talks to the parents and sees all the filings and what they say and all the depositions, and they review all of it. And they'll say to us as the lawyers, because they'll meet with us before they give the report and say, "Yeah, dad's the problem. He has manipulated this child and mom then negatively reacts, and then it is the conflict and the kid hates conflict, so the kid's going to be like water and take path of least resistance and the path of least resistance is not going to mom's."
Pete Wright:
Yeah.
Seth Nelson:
And it's horrible.
Pete Wright:
And boy, just hearing you say that, I can absolutely see why getting agreement on this hearsay thing is important, because you could get hammered with objections because why would you trust anything that the guardian says?
Seth Nelson:
They're getting nowhere.
Pete Wright:
If it didn't go to your case.
Let's drill down a little bit on impact on custody decisions. So, assuming you waive the hearsay rule, how much weight do judges typically give to the guardian's recommendations?
Seth Nelson:
A lot. A lot of weight.
The law is clear though. The judge does not have to accept a Guardian's report. A judge can say, "I think this guardian did a good job in evaluating these parties and I appreciate the recommendation, but ultimately on the court, it's my job to decide. I'm going to not go with the recommendation."
And that is tough for a judge to do because... And I don't mean this in a derogatory way, and it might come out that way. The easy thing is for the judge to say, "Guardian did a great job. I'm going with the report." You got a guardian. He did all this work. They waived the hearsay. Here's what they said. They were on the stand and held up to cross examination. Inevitably, one of the parties is going to attack the guardian for not doing a good job because they ruled against them, their recommendations are against them. The other one's going to say, "This is the best guardian in the history of guardians." Right?
Pete Wright:
Yeah, right. Superhero guardian. I get it.
Seth Nelson:
Yeah.
So, it's an interesting dynamic and sometimes maybe you think the Guardian did a nice job but just got the recommendations wrong. So, then as the lawyer, you got to support the guardian in their fact finding...
Pete Wright:
Yeah, and their effort.
Seth Nelson:
... Not in their ultimate decisions. So yeah, it's a delicate balance.
The other thing that we really need to focus on, which is really overlooked, is how do you, the parent, deal with the Guardian? Because what you want to do is, you're like, "Oh, finally, someone that's going to represent my kid and can talk to my kid, I'm going to tell you how it is." And you think if you just tell your story, the guardian is going to believe you.
I assure you, the guardian has heard this story before with different names, ages, children, but when you've been doing this as long as we have, nothing surprises you. So, you really need to get your thoughts in order. You need to say what you think the root problem is, you need to say what you think the symptoms then are, and what you think you've done well in trying to work through those issues in areas that you think you can improve on, because you've got some responsibility here because no one's perfect with dealing with a soon to be former spouse or former spouse when you got to get a guardian involved. There's tons of communications, there's tons of text messages or our Family Wizard message or talking parent messages where you're saying stuff you shouldn't be saying, either to the other parent or to the child or your social media post.
Pete Wright:
Oh yeah. Well, we've talked about that before. Stay off.
The question I have for you is about the dueling objectives of parents in a contentious relationship. How do you guide... I assume you're giving guidance to your client on how to relate to the guardian, and what happens when you know the case and you realize, "I think they're going to make a bad impression on the guardian when they talk to them."
What does that sound like?
Seth Nelson:
Oh. Exactly what I just said. I'm going to sit my client down and say, "Here's the problem: your heart is right, your mouth is wrong. You're coming from all the right places, but the way you're saying it, it doesn't sound like it."
Pete Wright:
Okay.
Seth Nelson:
This is not about how bad a dad is. This is you saying, "Here's what I think the issue is. Here's how it manifests itself. Here's how I try to deal with it. Here's some mistakes that I've made. Here's where I think I've done well, but it didn't have the desired result." And all of those are going to be communications. It's all going to be communications.
There was a doctor appointment that dad unilaterally set and did not tell me. I didn't find out about it until I got the statement of benefits in the mail that said my child had X and I went on a text message and I shot him a picture, and I called him all sorts of names, because I was frustrated. That was wrong of me.
As opposed to saying, "Hey, I got this statement of benefits. I don't recall us discussing going to this appointment, and I didn't see it on the shared calendar. My first concern is everything okay? And my second is if I missed it, please let me know, but can we work together to make sure that we're both aware of medical issues in the future?"
Pete Wright:
Right. Let's try to maintain civility.
Seth Nelson:
Yeah. And usually it's like, "You didn't even tell me about the appointment." They never ask if the kid's okay.
Pete Wright:
Yeah, right.
Which actually gets to my next question, which is you mentioned the guardian has a recommendation and both of the parents, I'm going to assume goodwill and say both of the parents are trying to make the case that they want to spend time with their kids, let's just say that. What happens when the kiddo comes out and says, "I have an opinion. I have agency here and I want to do something that conflicts with the recommendation of the guardian."
Seth Nelson:
Yeah. Well, the guardian would've had to say, "That's what the child told me and I didn't agree with it for these reasons."
Pete Wright:
Yeah.
I guess is there any weight to that in court dependent? I know on it's a six-year-old, you're not going to give him as much grace as you are a seventeen-year-old.
Seth Nelson:
Yeah, and I've had a case with a Guardian ad Litem, and I don't remember if it was actually a guardian, but the kid came in to testify and literally the judge goes, "Everybody here is right. That is a smart, educated, mature child, and there's a court order for him to be in Florida. He needs to come back to Florida."
Pete Wright:
Wow.
Seth Nelson:
And the kid was in his junior year or senior year or something in high school.
Pete Wright:
And had to leave his high school.
Seth Nelson:
Yep.
Pete Wright:
Wow.
Seth Nelson:
So, ultimately the kid doesn't get to make the decision.
Pete Wright:
Yeah. Okay.
Who bears the cost of the guardian?
Seth Nelson:
It's usually argued about. Judges tend to say one of the following things: "We're splitting this without prejudice," which means you both pay for, now we can argue about the money later, but I'm getting this report now from the guardian and you both are going to split it. Okay?
The second thing the judge can say is, "Mr. Nelson, your client wants it. They can pay for it. I'll do it without prejudice. We can argue about it later, but if you want to front the cost, fine."
Pete Wright:
Okay.
Seth Nelson:
Okay. So, when you're asking for something, you better be prepared to pay for it on the front end. You can argue on the back end, but you better be prepared to pay on the front end.
Pete Wright:
Okay.
Is there any circumstance in which the court orders a guardian and decides who pays for it?
Seth Nelson:
Yeah, they can decide up front, especially if one person has a lot more income than the other, if there's a huge disparity of income, so there's a lot of different ways that can flesh out. But there's very little time and do you want to spend your time arguing for a guardian in court if you have to go to court to argue about it, about who's going to pay for it, or you want to argue the substance on why you need it? I'm taking the substance on why I need it every day of the week and twice on Sunday.
Pete Wright:
Yeah.
I feel like you've given a really solid overview of the threshold interactions with a guardian, but are there any common fumbles you see parents make when dealing with a guardian that we need to know about?
Seth Nelson:
Always blaming the other. Always blaming the other side.
Pete Wright:
They write that down in their little book.
Seth Nelson:
Yeah. They're always blaming. And the guardians, they do this all the time. They can read through this and they'll get the lawyers on the phone and say, "Here's the problem. It will be Tuesday and one will say it's Wednesday, the other will say it's Monday, so we're not going to get anywhere here. And my report's going to say, these are two of the worst parents I've ever seen. Judge, here's my recommendation, but it's not going to help this kid." And then what does the judge do?
Pete Wright:
Do you have any other parents you could recommend that would take this child?
Seth Nelson:
That's right.
And then they say, "You know what? There's this podcast called The Toaster, and there are two guys there that seem to like kids."
Pete Wright:
Take them. The Toaster will start adopting, fostering kids.
Seth Nelson:
But only from poorly litigated parenting...
Pete Wright:
Yeah.
Seth Nelson:
... Cases, not regular foster care.
Pete Wright:
We didn't mention this upfront. You said as a side comment that they could be an attorney, the guardian, but I don't think we ever specified, what qualifications are there, if any, that are required to become a guardian?
Seth Nelson:
There's some courses you can take. Mental health professionals can be guardians. It listed in the statute, and being a member of the Florida Bar is one of them, but there's some really, really great people out there that have taken courses and do this for kids. And you don't... It's one of those jobs. Overworked, underpaid, yeah. It's really great people out there with good hearts that care about kids that do it.
Pete Wright:
And very well-supported by you as an attorney.
Seth Nelson:
Oh, if we can get a good one, we do it.
Now, sometimes the court... There's usually two types of guardians in their professional backgrounds. One is mental health professional, and the other ones will be lawyers that have litigated these issues, because we've seen the issues, we care about kids despite what people say about divorce attorneys, and so you're trying to get there and help people.
It's really interesting to me because when you talk to a lawyer, what they can do is do the analysis on the factors that the judge is going to do. They can see how it's going to play out in court, and they know the weaknesses of the case. They know the weaknesses of the parents, they know the weaknesses of their own report. And they'll say, "Yeah, Judge, I didn't really get everything I needed from mom because every time I asked for something, mom stonewalled me, and if I can't get it, I'm sliding for dad." Or... These dads/moms that I'm using are interchangeable. So, those are the backgrounds.
The mental health sometimes is really good at identifying the problem, but people usually go into mental health treatment to help people come together and ultimately this is an [inaudible 00:26:07] position and so sometimes they're a little bit kumbaya-ish. Like, "If they could just get along." Well, no shit.
Pete Wright:
Yeah.
Seth Nelson:
Of course...
Pete Wright:
That's a good point.
Seth Nelson:
... If they could just get along, we wouldn't be here. So, it's not that they're coming from it being naive, they just see the path if the parents would take the steps to get along, where sometimes I think that's a distraction where sometimes the lawyer's like, "This is why I think is best for this kid and here's why." They're more firm about it.
Pete Wright:
Matter of fact.
Seth Nelson:
You know?
Pete Wright:
Yeah.
Seth Nelson:
It's not right or wrong, it's just a different approach.
Pete Wright:
Super useful, Seth.
Seth Nelson:
Well, thank you.
Pete Wright:
Thank you everybody for downloading and listen to this show. We sure appreciate your time and your attention.
On behalf of Seth Nelson, America's favorite divorce attorney, I'm Pete Wright, and we'll see you next time right here on How To Split A Toaster, a Divorce Podcast About Saving your Relationships.
Outro:
How to Split A Toaster is part of the True Story FM Podcast Network, produced by Andy Nelson. Music, by T Bless and the Professionals and DB Studios.
Seth Nelson is an attorney with NLG Divorce and Family Law with offices in Tampa, Florida.
While we may be discussing family law topics, How to Split a Toaster is not intended to, nor is it providing legal advice. Every situation is different. If you have specific questions regarding your situation, please seek your own legal counsel with an attorney licensed to practice law in your jurisdiction.
Pete Wright is not an attorney or employee of NLG Divorce and Family Law.
Seth Nelson is licensed to practice law in Florida.
