April 25, 2013 § Leave a comment

GAL’s have a difficult job. Both sides in a contested child-custody case try to pull them into their respective camps, while the GAL is trying hard to maintain impartiality. The parties try to show only their good side and hide the bad, while the GAL has to penetrate the fog of misinformation to detect the truth. The GAL spends hours (often many of them uncompensated) developing the information that the court will need to make a proper decision. And then, when it comes time for trial, one side, or even both sides, will castigate and vilify the GAL and her report, questioning her conclusions as unsupported, or one-sided, or an outright lie. On appeal the GAL is portrayed as biased, prejudiced, arbitrary, capricious and lacking good judgment, in league with the devil (i.e., the judge) who ruled against the disappointed party.

That’s pretty much what happened in Lindsey v. Willard, decided  by the COA April 9, 2013. Jason, stung by the GAL’s unfavorable report as to his case to retain custody of his son, Tyler, and the chancellor’s reliance on it, appealed. Judge Roberts’ opinion affirming states:

¶18. Jason has a litany of complaints regarding the way the guardian ad litem conducted her investigation. According to Jason, the guardian ad litem was derelict in her duties, and she “abandoned her obligation” to conduct a proper investigation. Jason claims the guardian ad litem improperly obtained information from third parties, rather than going to more appropriate sources. For example, Jason complains that the guardian ad litem asked Jason’s father, Jimmy, whether Jason paid Mandy’s bills while Jason’s own bills went unpaid, but the guardian ad litem never asked Jason whether that was true. Additionally, Jason laments that the guardian ad litem accepted Jimmy and Tania’s word regarding the paternity of Mandy’s baby, but the guardian ad litem never asked Mandy whether her baby was fathered by someone other than Jason. Jason raises several other similar allegations.

¶19. The guardian ad litem was appointed in an investigatory capacity. She was not appointed to represent Tyler. Thus, the guardian ad litem was “obligated to investigate the allegations before the court, process the information found, report all material information to the court, and (if requested) make a recommendation.” S.G. v. D.C., 13 So. 3d 269, 282 (¶57) (Miss. 2009). Prior to making a recommendation, the guardian ad litem must “provid[e] the court with all material information [that] weighs on the issue to be decided by the court, including information which does not support the recommendation.” Id.

¶20. The chancellor contacted the guardian ad litem on June 14, 2011. The guardian ad litem began her investigation soon afterwards. She interviewed fourteen people and “evaluated all documents filed in this matter and all [of the] correspondence [that was] given to her.” On July 19, 2011, the guardian ad litem filed her report. Based on the totality of the circumstances, the guardian ad litem recommended that the chancellor find that there had been a material change in circumstances adverse to Tyler’s best interests. The guardian ad litem then recommended that Tania have physical custody of Tyler during the school year, and that Jason have physical custody of Tyler during the summer.

¶21. Jason’s attorney vigorously cross-examined the guardian ad litem during the July 2011 hearing. At that time, the guardian ad litem had seventeen years’ experience as a guardian ad litem for the Itawamba County Youth Court. She had also worked for the Itawamba County Department of Human Services. The guardian ad litem explained that she asked Jason’s father, Jimmy, several questions without verifying Jimmy’s responses with Jason because she did not want to further harm Jimmy’s relationship with Jason. The chancellor heard the guardian ad litem’s explanations regarding the manner in which she conducted her investigation. Jason and Mandy also testified during the July 2011 hearing, as did Tyler. Consequently, the chancellor heard what Jason and Mandy would have said in response to the questions Jason’s attorney thought the guardian ad litem should have asked. Finally, the chancellor did not “rubber stamp” the guardian ad litem’s report. Although the chancellor reached the same conclusions as the guardian ad litem, the chancellor did so based on her own analysis. We find no merit to Jason’s claim that the guardian ad litem’s investigation somehow resulted in reversible error. It follows that we find no merit to this issue.

What I like about this decision is that it upholds what was apparently a good effort by an experienced GAL who knew what to devote her time to for the most productive results.

GAL investigations and reports are not required to be perfect. They are required to be thorough, impartial, and for the best interest of the child. It’s refreshing to see the appellate courts recognizing the difficult role that GAL’s play in these difficult decisions.

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