I don’t get to see the battles and wars fought over children in our courts. For that, I must admit I am grateful.
However, family law attorneys both inside and outside my firm tell me enough to ponder the question of whether our state should mandate the use of guardian ad litems in divorce and custody cases.
Litigation in family law can be warfare in its rawest form. Oftentimes, the most affected casualties are the children involved.
But, there is one advocate for children in some contested family law cases; the guardian ad litem (GAL). I do not have room to delve into all of the duties of the GAL, but, the basic responsibilities of the GAL are to (1) investigate the family situation, (2) meet with and consult with the children, and (3) draft a report to the court regarding what is in the child’s best interest. Basically, the GAL is the lawyer for the only people in a divorce who have no voice; the children.
In contrast to the Constitutionally mandated representation of children in abuse and neglect proceedings (DFCS cases), the representation of children in divorce-related proceedings is not mandated by any rule or law in Georgia. A GAL can, upon motion of one of the parties, be appointed by the judge. Sometimes this happens; sometimes not.
Interestingly, 15 states have statutes that specifically provide for some type of GAL in a divorce-related custody/visitation matter: Alabama, Florida, Georgia, Hawaii, Indiana, Kentucky, Massachusetts, Michigan, New Hampshire, New Jersey, New Mexico, North Dakota, Rhode Island, Texas, and Wisconsin. Yet, of these 15, only 2 require appointment of a guardian ad litem: New Hampshire and Wisconsin. In the other states, the decision is discretionary with the judge.
As I have witnessed the inter-relationship between the criminal justice system and family law, I begin to wonder if Georgia needs to mandate GAL’s in divorce/custody cases. I know that many will disagree with me on this because of the cost of such a mandate. However, the idea deserves some attention. The following benefits may justify the cost:
(1) A reduction in family violence related crime and juvenile delinquency. Many of my criminal cases involve family violence, stalking, offenses related to substance abuse, and many delinquent offenses when children “act out” because of what they are experiencing at home and in court; (2) The decrease on the horrible affects that children suffer when their parents are at war; (3) A detailed investigation by a person who truly has the child’s best interest at heart; (4) Reports and testimony by the GAL that will assist the judge in making his or her difficult decisions in these type of cases; (5) Provide for a qualified advocate for the most vulnerable people in divorce/custody cases; and (6) Provide a system of uniformity in our family law courts.
I am a fiscal conservative. I do not like to see our government waste money. However, I have always been open to new ideas that may benefit our community in the long run.
I also do not believe it is wise to necessarily rely on other states to solve problems in Georgia. However, it would not hurt for the General Assembly to take a look at the GAL statutes in New Jersey and Wisconsin.
I also do not claim to have even scratched the surface on the issue of mandated GAL’s. I just want for you to think about this, talk to your elected officials, and perhaps come up with some good ideas that will help the children living in our community.