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What is a Guardian Ad Litem? A Summary of the role of a Guardian Ad Litem in Family Law Cases
by alexandra kleinfeldt, esq.
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Guardian Ad Litem (GAL) assumes an important role in family law cases involving minor children. A judge appoints a GAL to investigate issues relating to a particular family situation and to provide the court with information ensuring that the best interest of the minor children is protected. The GAL functions as the “eyes and ears” of the court. Regrettably, minor children are often innocent victims in the middle of a war between their parents. A GAL can take on a significant role in family disputes over time-sharing, parental responsibility, or even relocation when assisting the court by providing insight into the unique family situation and dynamics. Often, parties and their attorneys do not understand the role of a GAL. They believe that a GAL acts like a parenting coordinator, facilitator, mediator, case manager, or the child’s “advocate.” The GAL often must correct this misconception. To shed light on the role of a GAL, we should look at Section 61.401 of the Florida Statutes, which governs the appointment of a GAL in family cases. This section clearly states that “the court may appoint a guardian ad litem to act as next friend of the child, investigator or evaluator, not as attorney or advocate.” The role of a GAL is clearly stated in the Florida Statutes and even explains what a GAL is not. The Third District Court pointed out that a GAL is “regarded as the agent of the court,” Franklin & Criscuolo/ Lienor
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v. Etter, 924 So.2d 947, 949 (Fla. 3d DCA 2006), emphasizing that a GAL is not an advocate. Additionally, Section 61.401 offers the court the discretion to “appoint legal counsel for a child to act as an attorney or advocate” but prohibits the same person to accept both roles. Such information is critical for the attorneys to provide to the parties. Parties tend to call a GAL and inquire about the status of the case, complain about why time-sharing has not been changed yet, or request assistance in resolving issues. While cooperation by attorneys and parties is necessary for a GAL to conduct their investigation, a GAL cannot become involved in vindicating one party’s rights. However, attorneys and parties may reach out to the GAL and inquire about the GAL’s investigation on an issue to use this information in reaching a resolution. Parties tend to become frustrated or irritated because of the misguided conception of the role of a GAL that has been presented to them. Explaining the proper role of a GAL from the onset allows the parties to have realistic expectations and prevents these negative interactions between the GAL and the parties. Another important part of a GAL’s involvement in a case is their attendance at hearings, mediations, depositions, or other court proceedings. The GAL’s attendance assists the GAL in their investigation. Therefore, a GAL should also be included in the service of LeeBar.org
pleadings and documents to further their investigation. However, it is imperative to understand that a GAL should only be present at proceedings relating to matters involving the children. A GAL should not be involved in any discovery or financial dispute between the parents. The lines between acting as a GAL and being an advocate/attorney for the children can easily be blurred if the parties and attorneys involved in a case do not understand the proper role of a GAL. Strengthening the GAL’s effectiveness as a factfinder for the court can only be accomplished by understanding the precise nature of the GAL’s function. Everyone involved in the case must avoid undermining the GAL’s factfinding role by imposing or assigning new and additional tasks and obligations on the GAL. Overall, for the GAL to be the effective factfinder and investigator for the court by keeping the best interest of the children in mind requires the understanding and cooperation of everyone involved in the case, most importantly from the attorneys and parents.
Alexandra Kleinfeldt, Esq. is the co-chair of the GAL Committee and the founder of Kleinfeldt Law Firm, PLLC where she practices in the area of Family Law, Guardianships, Estate Planning and Probates. She also serves the community as a Guardian Ad Litem, mediator, and arbitrator.
