When the GAL Goes Beyond the Court’s Mandate

February 6, 2017 § 2 Comments

What is the court’s duty to address a GAL’s recommendations on matters not included in the court’s order appointing the GAL?

Angela Davis and her ex-husband, Gary Davis, shared joint legal and physical custody per an irreconcilable differences divorce judgment entered in 2004. In 2013, following an altercation between Gary’s then wife and one of the children, Angela sued him for termination of parental rights (TPR), or for modification of custody, and for an upward modification in child support. Gary counterclaimed for contempt and for modification to give him sole custody.

The chancellor appointed a GAL to make recommendations with respect to the TPR issue. The GAL recommended that Gary’s parental rights not be terminated, and went on to recommend that Angela have “primary custody,” with Gary having visitation, “because that is how they have been operating since the date of the divorce.”

The chancellor denied Angela’s prayers for TPR, for modification of custody and visitation, and for an increase in child support. He did order Gary to pay the children’s private school tuition. Angela appealed, and one of the issues she raised was that the chancellor’s ruling failed to address why he did not follow the GAL’s recommendation as to custody and visitation.

The COA affirmed in Davis v. Davis, handed down January 24, 2017. Here’s how Judge Lee wrote for the unanimous court (Westbrooks not participating):

¶19. In her third issue, Angela claims the chancery court should have followed the GAL’s recommendation as to the modification-of-custody/visitation issue, or it should have provided written findings as to why the GAL’s recommendations were not followed.

¶20. “Our supreme court does not require a chancellor to follow the findings of a GAL.” In re N.B., 135 So. 3d 220, 228 (¶35) (Miss. Ct. App. 2014) (citing S.N.C. v. J.R.D. Jr., 755 So. 2d 1077, 1082 (¶17) (Miss. 2000)). “However, ‘when a chancellor’s ruling is contrary to the recommendation of a statutorily required GAL, the reasons for not adopting the GAL’s recommendation shall be stated by the court in the findings of fact and conclusions of law.’” Id. (quoting S.N.C., at 755 So. 2d 1082 (¶18)).

¶21. Here, the GAL was appointed solely to investigate the termination of parental rights. The GAL recommended that Gary’s parental rights not be terminated, and the chancery court followed the GAL’s recommendation. Since the GAL was not appointed to investigate the modification-of-custody/visitation issue, we cannot find the chancellor erred in failing to state his reasons for not adopting the GAL’s recommendations regarding custody and visitation.

Some thoughts:

  • Make sure your GAL order is specific and clear as to which issues the GAL is required to serve. Angela’s appeal might have won the day had the GAL order been vague or general (e.g., ” … to make recommendations as to the best interest of the children …” ).
  • I’m not sure whether this issue has been squarely before the appellate courts before, but to me it’s definitely a new wrinkle in GAL jurisprudence.
  • Once again the term “primary custody” pops up in a case. In 2009, the MSSC ruled that the term “primary custody” and its permutations like “primary physical” and “primary legal” and “primary physical and legal” custody have no legal meaning in our law. You might recall that I posted here about it ‘way back in 2010. It’s not that big a deal in most cases, but, as I pointed out in that previous post, it can work some serious mischief in custody agreements and judgments. In my opinion, it’s better simply to purge the term entirely from your legal vocabulary than to use it heedlessly and have it ricochet fatally against a client or former client in later proceedings. In a recent custody case I heard, counsel for both parties used the term repeatedly. It was like fingernails on a blackboard to me.

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§ 2 Responses to When the GAL Goes Beyond the Court’s Mandate

  • I represented Angela. The judge did the GAL order specifying the reason being tpr only although there were abuse allegations. I tried at trial to get the information from the gal out about the relationship between the kids and poppa to help with the modification on custody. Didn’t work but I tried. I did not do the original psa language with “primary” custody in it. I hate those and I don’t even know what it means. You have custody or you don’t. They were operating like custody and visitation instead of joint custody with one having “primary”. Having “custody” instead of “visitation” makes it harder to modify. I tried to claim it was really visitation to make modifying easier. That didn’t work either. We are not going for rehearing so the case will be law.

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