My expectations for the guardian ad litem

Posted Thursday, December 17th, 2009 by Gregory Forman
Filed under Child Custody, Guardians Ad Litem, Litigation Strategy, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

Recently I fussed at a guardian of whom I am quite fond.  It’s never comfortable to fuss at folks one likes but I come from a culture where it’s considered better form to let others know one’s expectations than to remain silent and not allow others to meet these expectations or explain why they are unrealistic.  My experience is that when folks allow unspoken expectations to remain unmet it eventually leads to a breach in the relationship.   Better to confront than to slowly drift apart.

The blog on how to draft an affidavit was inspired by a two-hour phone conference that devolved into an increasingly frustrating attempt to get a counselor I am fond of to draft a coherent affidavit and was written as a form of penitence/apology to the fussed-at counselor.  This blog is penitence/apology to the fussed-at guardian but is directed to all of the guardians out there who work on my clients’ custody cases.

I have four expectations for a guardian in my custody cases and there is one expectation that other attorneys sometimes have that I never have.  The four expectations are: 1) the guardian will undertake the investigation I suggest or provide me a written explanation as to why that investigation does not need to be undertaken; 2) the guardian will present an honest evaluation of what her or his investigation uncovers, eventually in writing, and that this evaluation will acknowledge the good and the bad that the guardian has discovered about each parent (rather than simply focusing on the good aspects of one parent and the bad aspects of  the other parent); 3) the guardian’s oral and written reports to the court will focus on factual analysis (and not merely state opinion, make credibility determinations or regurgitate hearsay) and will comply with the code regarding guardian reports; and 4) the guardian will be adequately prepared to address the contested issues at any hearing involving the children’s custody or visitation.

The one thing I never expect a guardian to do is support the position that I advocate.  So long as the guardian does the four things I expect above I will never fuss as the guardian.  This does not mean that if I believe the guardian is failing to apprehend or acknowledge some important fact or issue I will not point that out to the guardian, but merely because the guardian does not advocate a position my client would have hoped she or he would advocate is not a reason for me to get upset at a guardian and I will continue to use and respect a guardian who routinely advocates a position contrary to my clients’ wishes if that guardian meets my four expectations above.  The only reasons I stop using guardians is that either they fail to meet those four expectations above or that I find their judgment or analysis to be routinely so flawed that the court routinely rejects their conclusions.

My clients pay substantial fees to the guardian and place trust that a guardian will properly advocate their children’s “best interests.”  A guardian’s failure to properly do his or her job can be devastating to my clients’ relationships with their children.  Unless my expectations are unreasonable,  a guardian who fails to meet them deserves to be fussed at.

One thought on My expectations for the guardian ad litem

  1. mlramsdale says:

    I would add that the Guardian will timely respond to issues that arise and will request a hearing when necessary to protect the welfare of the children.

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