Chapter 61, Under Section 61.13 by Judge Marcia Caballero
In many cases, a Guardian Ad Litem (GAL) may be helpful to the court in making these important decisions that will have an impact on the lives of the most vulnerable members of our society. A GAL may be appointed by the judge on their own volition or upon the request of a party by appropriate motion filed in the case. Once appointed the GAL becomes a party to the proceedings until discharged by the court.
In cases where there is high conflict and acrimony between the parties or between a party and the minor child a GAL could assist the court in reaching its decisions. A GAL may also be helpful in cases where there appears to be undue parental influence or manipulation of the child by one parent or in cases where there are allegations involving a change in access to a child and potential parental alienation. Other cases where a GAL may be of assistance to the court involve those wherein there are allegations of neglect or abuse of the child or where there are allegations of mental illness of a parent or substance abuse by a parent. In cases involving domestic violence issues a GAL may be useful as well in assisting the court in determining timesharing issues, any safety issues or any trauma exposure of the child.
In any case where a GAL is appointed, it is the GAL’s mission to thoroughly investigate the allegations and to make recommendations for the best interests of the child. It is imperative that the GAL familiarize him or herself with the case and all the allegations raised therein as they relate to the minor child. The GAL should also meet with the child and spend sufficient time with the child to be able to make meaningful and appropriate recommendations to the court with confidence. Although it is important that the GAL is able to see and observe the child in their regular environment with both parents, it is important that the child is also provided a safe space to be able to speak with the GAL openly and without the influence of either parent.
When possible, the GAL should speak with teachers, coaches and other individuals who are significantly involved with the child to get their perspectives without informing them of the allegations or issues in the case. When appropriate or necessary, the GAL should file motions or otherwise make requests of the court as the next friend of the child for the minor child’s best interests and as needed for their investigation. The GAL shall appear in court for all hearings and proceedings involving the minor child unless excused by the court and they are entitled to attend any and all depositions.
In formulating their recommendations, it is important that the GAL rely on the evidence and facts that they have discovered in their investigation and that their opinion not be influenced solely by either parent. The GAL shall have immunity and will be protected by Florida law of any civil or criminal liability in connection with their role as GAL so long as he or she has acted in good faith.
When a family has an open domestic relations case and a dependency case, the court will appoint a GAL through the Florida Guardian ad Litem Program. The program will then assign either a staff GAL or a volunteer GAL who has been specially trained. The advocacy of the GAL in the dependency case positively impacts a dependent child’s safety, well-being, best interest and the finding of a permanent placement for the child.
While open, the dependency case takes precedence over the family matter. Therefore, the court will not usually appoint a GAL in the family case until such time as the dependency case is closed. However, if the dependency case is opened by the filing of a private petition for dependency, the court may use its discretion to appoint a GAL in both cases. In the event this occurs, the GAL will need to file separate reports in the domestic relations case and the dependency case due to matters of confidentiality under Florida Statute Chapter 39. Furthermore, the GAL reports are always provided to the court throughout the dependency proceedings, especially during the six month Judicial Review Hearings. In contrast, the GAL’s report in a family or domestic relations case is only provided to the court upon the stipulation of the parties. This matter should be addressed in the initial order appointing the GAL as well as any matters pertaining to child hearsay or hearsay in general. If these matters are properly addressed in the order of appointment, this could avoid any problems arising after the GAL has done all of the work and has made their recommendations. Usually the parent who is not fairing well in the findings of the GAL will oppose the report. This will then create all sorts of problems, delays and unnecessary ongoing litigation. The order of appointment should be well drafted and clearly delineating the GAL’s powers, duties, responsibilities and authority.
The ultimate duty of the GAL is to help protect the child’s best interests. This duty may not always be in agreement with the wishes of the minor child. It is important for the GAL to inform the court what the child’s wishes are and why their recommendations differ from those wishes. Courts heavily rely on the recommendations of the GAL in both domestic relations and dependency cases although they are not bound by them. Judge’s will use the GAL’s report for guidance in making their decisions and give weight to them as they deem appropriate under the circumstances of each case.