GUARDIAN AD LITEM
-WHAT THEY DO AND WHAT PARTIES SHOULD AND SHOULD NOT DO WHEN THE COURT APPOINTS A GUARDIAN TO THEIR CASE
BY CINDI KAMEN, ESQUIRE

We have all had cases where the parents are so enmeshed in their own arguments, their child’s best interest takes a back seat in their case. When a case presents high-conflict issues regarding children, the Court will frequently appoint a guardian ad litem to investigate the allegations of the parties’ pleadings and motions and make recommendations to the Court that protect the child’s best interests. As described in Section 61.401, Florida Statutes, the guardian ad litem acts as “next friend of the children.”

Though a guardian ad litem’s powers and authority is described in Section 61.403, Florida Statutes, it is important to explain to the parties and at times, their attorneys, what that power and authority is.

The guardian ad litem’s role is defined in the statute and also in the Order Appointing the Guardian ad Litem. First and foremost, the guardian ad litem is charged with identifying the issues the Court directs the guardian ad litem to investigate, and conduct the investigation based on the allegations each party has made in their pleadings and motions. It is not the guardian ad litem’s role to investigate issues not preserved in the pleadings or motions. To do so runs afoul of the guardian ad litem’s authority under Section 61.403(1), Florida Statutes.

Each guardian ad litem has their own method for conducting their investigation. My typical method is this:

• I review the Order Appointing Guardian ad Litem to define my role. I then go through the docket and pull out all prior orders regarding the child, all pending motions and pleadings, and any evaluations or therapy compliance reports that may have been filed.
• I send a letter to the parties’ counsel (or the parties directly if the party is not represented) asking them to contact my office to set an appointment. I always invite the attorney to join the meeting with their client if the attorney wishes.
• At the initial meeting with each party, I explain my role and get the party’s history of the issues. This is always interesting because it is highly unlikely the parties will identify the same issues – which is why the Court appointed me in the first place. It is important at this stage for me to explain to the party and to the attorney that I am not the judge and not acting as the child’s attorney. My role as guardian ad litem is to investigate the allegations the parties have made about the “children issues,” and then submit to the Court my findings and recommendations. I also explain that the Court may accept all, some, or none of my recommendations – as it is the Judge’s job, not mine, to determine the outcome of the case. I emphasize to the parties and the attorneys that I am not there to give legal advice to the parties or their child and cannot make either parent or the child follow what I may say. I sometimes confer with the attorneys to see if agreed orders may be worked out on some issues, but I am not the judge and make no decisions.
• At that initial meeting, I ask each party to send me a list of who they want me to interview. It is important to ask them to limit the list to people relevant to the current issues. Speaking to their third-grade teacher from 20 years ago or their cousin who was in the wedding party is not going to help my investigation. I also ask them to furnish me copies of any documents not in the court file that they believe I should review as part of my investigation.
• If the parties use a recommended communication application, I ask the parties to allow me access to their account so that I may review their messages from time to time.
• I next schedule home visits. I meet the child at each parent’s home. I do the home visit to see the child’s accommodations, to see the child’s interaction with the parent, and to talk to the child in a familiar environment. I don’t interview adults during the home visit, so please do not invite your other family members and neighbors to your home when you know I will be there.
• I review the witness lists and decide the order in which I will call them and when I will call them. Some witnesses are better interviewed later rather than sooner, perhaps when the witness won’t be expecting your call.
• If either party speaks of any history of violence or police activity, I order DCF and police incident reports for the parties and run their driver’s licenses and driving history. I check for other cases filed between the parties. If there was an arrest, I order the police body cam video if it is available.
• I send a copy of the Order Appointing Guardian ad Litem to the child’s schools, doctors, therapists, coaches, and other professionals I may need to interview as part of my investigation.
• I speak to the child’s teachers, counselors, and other school staff. I review the child’s attendance, grades, school evaluations, and IEPs. Schools are one of the most helpful sources of information as they often have non-biased information to share not just about the child, but also about each parent’s involvement or interaction with the school.
• I also speak to the child’s doctors and therapists if medical or behavioral issues are raised, or a child has a disability.
• I meet with the child multiple times during my investigation, including at my office. I speak privately with the child. I provide the child my telephone number and let them know I do not give my cell number to their parents. The child likes to know that I am their guardian ad litem and not their parents’ guardian ad litem.
• I also speak with the parents again, as need be.
• As the date for filing my guardian ad litem report approaches, I prepare a report of my investigative findings and my recommendations. I usually do not prepare reports prior to mediations unless a judge requests a particular issue be addressed in the interim, but I do offer to have a conference call with both parties’ attorneys on the line to tell them what my preliminary findings and recommendations are for mediation purposes.
• I testify at the final hearing. I am deemed discharged as the guardian ad litem 30 days after the final judgment is entered, unless the court order says otherwise.

There are some tips that attorneys should share with their clients on how to work with the guardian ad litem. Those include:

• Tell the truth. Lying to or hiding information from the guardian ad litem is not going to help your case.
• Be responsive to questions the guardian ad litem asks. Do not ignore the guardian’s questions, even if you do not agree with the questions. Return the guardian ad litem’s emails or calls.
• Do not miss or cancel appointments with the guardian ad litem. Be on time.
• Sometimes a Court will order drug testing, counseling, or psychological evaluations based on a guardian adlitem’s recommendations. Cooperate with any ordered service. Ignoring the Court’s referral is going to delay the case and work against the party.
• Don’t miss the drug test, even if you know it will show drug use. A missed drug test is the same as a positive drug reading, in a guardian ad litem’s opinion.
• Be respectful to the guardian ad litem. Often times, the guardian ad litem’s investigation will make one or even both parents unhappy. Writing insulting emails to the guardian ad litem is not helpful in that event.
• Do not use the guardian ad litem as your pseudo-attorney. The guardian ad litem cannot give a parent advice. The guardian ad litem cannot directly intervene in the parents’ disputes. That is the role of the party’s attorney or the Court.
• Before you contact the guardian ad litem to report an “emergency” make sure it is a true “emergency” involving the child.
• If you do not like a guardian ad litem’s report or her findings and recommendations, bring your comments to the guardian ad litem respectfully. Filing a motion to discharge the guardian ad litem because you are not happy with the findings and recommendations will not likely be successful. Discharging for bias requires a high standard of proof. If you believe a witness was overlooked or the guardian misconstrued something, the party’s attorney can address that with the guardian ad litem either before the final hearing or at the final hearing through cross examination. There is no benefit to a party contacting the guardian directly to voice their objections in a disrespectful manner.

At the end of the day, the guardian ad litem’s one and only role is to investigate and report to the Court the findings and recommendations that the guardian believes are in the child’s best interest. Particularly in a high-conflict case, either on or both parents will be dissatisfied with the guardian ad litem’s findings and recommendations at some point during the process. It is important for the guardian ad litem to have thick skin. We are there serving an invaluable role for the children who cannot speak for themselves and must keep in mind that we were appointed to be the child’s voice for the Court because the parents were not able to do so in a positive cooperative manner.