No GAL = No Error

April 10, 2019 § Leave a comment

After Amber Brown was personally served with a summons for a contempt proceeding, she failed to appear and was found in contempt and ordered to pay her ex-husband, Hewlett, $5,000 in attorney’s fees. She appealed.

One of her manifold issues was that the judge erred in not granting a continuance to allow for appointment of a GAL.

In Brown v. Hewlett, decided March 12, 2019, the COA affirmed. Here is Judge Jack Wilson’s opinion on the point:

¶29. First, Brown asserts that the chancery court should have granted a continuance and appointed a GAL to investigate “allegations of abuse and/or neglect.” However, Brown never asked the court to appoint a GAL. Therefore, any claim that the court should have exercised its discretion to appoint a GAL is procedurally barred. See, e.g., McDonald v. McDonald, 39 So. 3d 868, 885 (¶54) (Miss. 2010) (“The well-recognized rule is that a trial court will not be put in error on appeal for a matter not presented to it for decision.”).

¶30. Nor was the appointment of a GAL mandatory in this case. If there is a legitimate charge of abuse or neglect in a custody proceeding, then the chancery court must appoint a GAL, “whether the parties requested a [GAL] or not.” Carter v. Carter, 204 So. 3d 747, 758-59 (¶50) (Miss. 2016) (citing Miss. Code Ann. §93-5-23 (Rev. 2018)); see also Miss. Code Ann. § 93-11-65 (Rev. 2018)). However, the appointment of a GAL is mandatory only if there is a “sufficient factual basis to support” an allegation of abuse or neglect. Carter, 204 So. 3d at 759 (¶51). The chancery court has “discretion” to determine whether such an allegation is “legitimate.” Id. at (¶53). If the court concludes that there is no factual basis for the allegation, then the appointment of a GAL is not mandatory. Id. In this case, Brown fails to cite to any concrete allegation of abuse, let alone any evidence to support such a claim. Even at the final hearing before the chancery court, Brown merely testified that Lily had seen a counselor for unspecified reasons. On this record, the chancery court did not abuse its discretion by not appointing a GAL sua sponte in this contempt proceeding. [Fn omitted]

Simply because you insert the magic phrase “abuse and neglect” into your pleading, you have not created a duty for the chancellor to appoint a GAL in your case. As the opinion demonstrates, there must be a sufficient factual basis to support the allegation — sufficient to convince the judge that there are facts worth investigating that bear on the best interest of the child. Remember, you must call the request to the attention of the court, and that is done via motion. Under R 43(e), you can use an affidavit of your client or someone with eye-witness knowledge to support the motion.

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