Rejection and the GAL

May 8, 2014 § 3 Comments

Most of the guardians ad litem (GALs) with whom I talk react noticeably when the chancellor does not accept or follow their recommendations. Reactions range from mild puzzlement to indignation.

It has never been the rule in Mississippi that the chancellor is required to follow the GAL’s recommendations or accept the GAL’s conclusions. The rule that applies when the judge opts to go in a different direction was stated in the case of Floyd v. Floyd, 949 So. 2d 26, 29 (¶ 8) (Miss. 2007), which said:

This Court has held that a chancellor shall at least include a summary review of the recommendations of the guardian in the court’s findings of fact when the appointment of a guardian is required by law. S.N.C. v. J.R.D., Jr., 755 So. 2d [1077,] 1082 [(Miss. 2000)]. Furthermore, if the court rejects the recommendations of the guardian, the court’s findings must include its reasons for rejecting the guardian’s recommendations. Id. While a chancellor is in no way bound by a guardian’s recommendations, a summary of these recommendations in addition to his reasons for not adopting the recommendations is required in the chancellor’s findings of fact and conclusions of law. Id., Hensarling v. Hensarling, 824 So. 2d 583, 587 (Miss. 2002).

So, the requirements are that the judge’s ruling must include a summary review of the GAL’s recommendations, and must include its reasons for rejecting them. 

In the MSSC case of Darnell v. Darnell, handed down April 24, 2014, the court held that the chancellor’s failure to follow the dictates of Floyd did not in and of itself warrant reversal, although the case was reversed on another ground. Here is how Justice Coleman’s opinion addressed the issue:

¶40. “The chancellor was in no way bound to follow the recommendation made by the [guardian ad litem].” Hensarling v. Hensarling, 824 So. 2d 583, 587 (¶ 10) (Miss. 2002). Under the Court’s standard of review, the Court does not find that the chancellor’s determination was manifestly wrong or that he abused his discretion.

In any case where a GAL is appointed to represent a child, the chancellor’s role as fact-finder requires the evidence presented by the GAL, as well as all other relevant evidence, to be considered and given such weight as the chancellor determines it deserves. Thus, the question to be answered by the Court is not . . . whether the chancellor ignored the GAL’s recommendation; but rather, whether the evidence in the record supports the chancellor’s decision.

Lorenz v. Strait, 987 So. 2d 427, 431 (¶ 16) (Miss. 2008) (internal citations omitted). In the case sub judice, the chancellor considered the guardian ad litem’s recommendations and conducted his own analysis of the Albright factors. The chancellor was the fact-finder, and his holding made clear the reasons for his decision. While it is the better practice for a chancellor to describe specifically why he or she disagrees with a guardian ad litem’s findings, the Court cannot find that the chancellor in the instant case abused his discretion in reaching the result he reached. Therefore, the issue is without merit.

In Darnell, the MSSC explained how the chancellor had done a thorough Albright analysis that addressed pertinent points of the GAL report. It found that the chancellor’s basis for not following the GAL report was clear in his Albright analysis.

I don’t see this case as pointing a new direction or changing the rules. What the court found here was that, although the chancellor did not expressly say why he was rejecting the GAL’s recommendations, his rationale was clear enough in his Albright findings so that the case did not require reversal on that point.

You should read this case for its analysis of the hearsay rule and its applicability in child sexual abuse cases. It’s particularly noteworthy for its exposition on the principle that hearsay may be introduced for purposes other than to prove the matter asserted.

 

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§ 3 Responses to Rejection and the GAL

  • Chris Bailey says:

    Thought you might enjoy this post considering the appeal you worked on.

    Christopher N. Bailey, Esq. Sent from my iPad

    This communication and any attachments may contain legally privileged or otherwise confidential information and is intended for the sole use of the individual or entity named above. Any dissemination, copying or distribution of this communication is strictly prohibited. If you have received this email in error, please notify the sender immediately by return email and delete any copies of this communication.

  • Jane Tucker says:

    My only experience with a GAL was in SG v. DC and after doing allstates research on Westlaw and quizzing the speakers at a GAL conference (I knew almost nothing about family law at the time), I concluded that this guy was totally clueless if not outright evil. Are there enough GALS in Mississippi now that most of them are somewhat competent? I remember calling the Bar to see about who or what was in charge of GALS and was told to take it up with the judge and all I could respond to that was to tell them that the judge in that case was also hugely incompetent.

    • Larry says:

      There has been major improvement, thanks to certification and required training. We have some excellent GAL’s here in E. Miss.

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