Top Five Questions About Montana Guardians ad Litem?

Now that I have expanded my practice to include guardian ad litem work, I am receiving dozens and dozens of questions about what guardians ad litem do and do not do.  The following questions seem to be the top five:

1.  Does a Guardian ad Litem have to be a lawyer?

Montana law does not require that guardians ad litem be licensed attorneys.  In fact, in dependency/neglect cases, many guardians ad litem are not attorneys.  In custody and divorce cases, I strongly suggest the parties utilize a guardian ad litem that is a licensed Montana attorney, well-versed in Montana family law.

While a GAL may be a lawyer, the GAL is not technically a lawyer for the children.  The distinction seems minor, but can be incredibly important.  A GALs’ job is to make a recommendation to the Court regarding what is in a child’s best interest, even if it is contrary to what a child desires.  A child’s lawyer, on the other hand, would be expected to advocate on behalf of the child’s desire, even if the desire were not in the child’s best interests.

2.  How much do Guardians ad Litem cost?

Because most GALs are license attorneys, the cost is similar to that of an attorney.  However, GAL fees are usually split between the parties.  Often times the cost is split equally, but if the incomes of the parties are very disparate, the court may order a different split of the GALs fees.

3.  How long does a GAL take to do an investigation and report?

Depending on how complicated the case is, how accessible the parties are and how many other professionals need to be consulted with, a GAL can take anywhere from a couple of weeks to several months to do their investigation and report.

4.  What determines whether a GAL becomes involved in the case?

There are basically two ways a GAL becomes involved in a case.  First, the parties might agree that the case is complex enough that a GAL should become involved.  In that circumstance, the parties will enter into a stipulation or agreement appointing a GAL.  In other cases, only one of the parties may feel a GAL is appropriate.  If the other disagrees, the party desiring a GAL will file a motion for appointment of a GAL with the Court.  The other party will have the opportunity to object and then the court will make a decision.

5.  What factors does the GAL consider during her/his investigation?

When investigating and reporting to the Court, the GAL should consider: the wishes of your child and both parents; the safety and well-being of the child; the child’s relationship with both parents and other family members; the cooperation and communication between parents and whether either one unreasonably refuses to cooperate or communicate with the other; a parent’s likelihood to interfere in the other parent’s continuing relationship with the child; any physical abuse or problems with alcohol or drugs; the reports of appropriate professionals (counselors, doctors, etc.); and other significant factors that would affect the child’s well-being.