When a child’s mental health professional makes a guardian ad litem unnecessary

South Carolina Code §63-3-810(A)(1) allows the family court to appoint a guardian ad litem in a private custody case when “without a guardian ad litem, the court will likely not be fully informed about the facts of the case and there is a substantial dispute which necessitates a guardian ad litem.”  Thus attorneys routinely consent to the appointment of a guardian under the expectation that the court will appoint one anyway. See S.C. Code §63-3-810(A)(2) (authorizing the family court to appoint a guardian in a private custody case when “both parties consent to the appointment of a guardian ad litem who is approved by the court.”)

Yet there are circumstances when a guardian is merely an unnecessary added expense.  An obvious example is when there is not a substantial dispute involving custody–sometimes one party merely challenges custody as negotiating leverage.  However often there is a substantial dispute but someone other than a guardian may be in a better position than the guardian to investigate and report on that dispute.  In this circumstance a guardian can be unnecessary and even counterproductive.

One example are cases in which physical or sexual abuse of a child is alleged and is the primary factor in resolving the dispute.  Such cases will often resolve based on a determination of whether the child was abused by one parent or, perhaps, coached by the other parent.  Here a forensic evaluator will be the vital witness to resolving the dispute.  No guardian ad litem will have sufficient training or experience to dispute the forensic evaluator’s determination and most intelligent guardians will have enough sense not to do so.

The few guardians foolish enough to engage in a factual dispute with a forensic evaluator will needlessly complicate the case.  The party who agrees with the guardian and disagrees with the forensic evaluator will refuse to accept the evaluator’s conclusion and thus will be reluctant to settle.  Meanwhile the court will almost always side with the evaluator over the guardian when it comes to factual disputes within the evaluator’s expertise.  If a party wishes to challenge a forensic evaluator’s analysis, the better strategy is to seek the employment of a different forensic evaluator and then seek leave of the court to have the child evaluated by the new evaluator.  Assuming the two evaluators disagree, trial will develop into a battle of forensic experts, but a guardian will have little helpful input to resolve such disputes.

More frequently custody cases involve disputes over whether a child is suffering psychological trauma in one parent’s home or whether and why a child has a strong custodial preference.  In such cases a mental health professional for the child (a counselor, social worker, psychologist or psychiatrist) is superior to a private guardian in training, expertise and experience to analyze and report on the disputed issues.  Often children involved in custody disputes already have a relationship with such a mental health professional and the expense of a guardian is wasteful (for the very same reasons that guardians may be wasteful in cases involving forensic evaluators).  Again if one wishes to challenge the mental health professional’s conclusions, the better strategy is to retain a different professional to provide a second opinion.

A side benefit of relying upon such professionals rather than on private guardians is that these professionals’ fees are often covered under health insurance policies.  Reflexively seeking a guardian where such professionals can investigate, report on, and (potentially) resolve the custody dispute often complicates the litigation while wasting the parties’ resources.  Thoughtful family law attorneys should consider whether a guardian is useful before seeking the appointment of one.

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