When parents seek approval of any agreement that resolves a dispute over a child’s custody, the family court judge looks to the guardian ad litem and asks the guardian whether the agreement is “in the best interests of the child?” Even if the guardian is not seeking to prevent approval of the agreement, I do not believe it is required–or even desirable–that the guardian always answer “yes.”
Sometimes the guardian may not believe an agreement is close to ideal yet does not want to hold up resolution of the case. Other times a guardian may not have done sufficient investigation to determine whether an agreement is “in the best interests of the child” but does not want to prolong the litigation. In such circumstances the guardian should indicate that he or she does not oppose the approval of the agreement without giving it his or her blessing.
Because in any DSS abuse or neglect case the parents are not presumed to be “fit,” a guardian cannot presume that the parents are acting in the child’s best interests. In such cases, it is incumbent upon the guardian to investigate sufficiently to have an informed opinion on whether an agreement is “in the best interests of the child.” In such circumstances, allowing approval of the agreement to go forward without sufficient investigation to determine whether the agreement is in the child’s best interests is a dereliction of the guardian’s duty.
However, in private custody cases the guardian starts with a presumption that the parents are fit. Sometime these parents will reach agreements–either through negotiation or mediation–in which the guardian had little input. If these agreements are counter to what the guardian believes are in the child’s best interests, or if these agreements merely alters the status quo in a manner that the guardian has not anticipated and therefore has not investigated, what is the guardian to do?
There is a school of thought that any agreement the parents reach is “in the best interests of the child” because it is always in the child’s interests that his or her parents reach resolution on custody. However if this is what the law means by “best interests of the child” guardians ad litem’s and even family court judges’ approval of custody agreements are unnecessary as by definition any agreement would be in the child’s best interests.
I had a case as a guardian in which a mother agreed to give her own mother visitation with the child. I had done a thorough investigation into the mother’s fitness but no investigation into the grandmother’s. I have had other cases in which parties shift from shared to primary custody or primary to shared custody as part of an agreement and I have not investigated whether the child would be happier with this new proposed arrangement. If I inform that court that these agreements are “in the best interests of the child” I am lacking candor towards the tribunal and violating the lawyer’s code of professional conduct. However if I undertake further investigation, I may be incurring guardian ad litem fees unnecessarily, which violates a different section of the lawyer’s code of professional conduct on fees. Thus, to finesse the issue, so long as my investigation shows that the parents are fit, I simply indicate that my investigation shows that the parents are fit and that I do not oppose the approval of the agreement.
There could be circumstances in which the parties reach an agreement and I, acting as the child’s guardian, demand further investigation prior to a hearing on the agreement’s approval. If the proposed agreement radically alters a child’s relationship with one parent or if there are concerns that the agreement may be the product of coercion or overreaching, the guardian is duty bound to investigate further (I would note that in 16 years of practice these circumstances have never arisen).
Absent such circumstances, in private custody case a guardian should probably not attempt to hinder approval of any agreement between parents whom his or her investigation show to be fit. However a guardian should not reflexively state that an agreement is “in the best interests of the child” if the guardian does not believe that to be the case or if the guardian has not investigated sufficiently to determine whether that is the case. While family court judge’s often appear confused when a guardian states that he or she merely does not oppose approval of an agreement, such a tepid endorsement may be the only resolution that strikes the correct balance between the duty of candor towards the tribunal and the duty not to incur unnecessary fees.