Guardians ad Litem

Sometimes, when custody matters in New Jersey grow combative, the court will require the use of a guardian ad litem. These are individuals who are appointed by the court to advocate for the best interest of the child. Although they are not commonly appointed, when they are, it can be incredibly effective in resolving the matter. They are independent voices who can provide clear guidance to the court, who might not have the same access to the facts of the case as the guardian ad litem.

This role is different from that of a law guardian, which must be appointed in cases where there are accusations of child abuse or neglect, or when the termination of parental rights is at issue. Law guardians must be attorneys who are admitted to the bar in New Jersey. They are appointed to not only represent the best interest of the child, but they also have to help protect the child's own interests and help them express said interests to the court. Guardians ad litem are not representing the child or his or her preferences. They are only representing their best interests. Either party can request the appointment, or the court may do this on their own.

The guardian ad litem (GAL) will investigate the case and then make recommendations to the court regarding custody and visitation of the child. There are statutory requirements for the GAL to use when making their recommendation, which can be found in Rule 5:8B. The GAL should base their report on interviews with the children, parties, and other people who might have relevant information (such as teachers, nannies or relatives). They should obtain documentary evidence and confer with each party's attorney. They may also confer with the court, provided they have provided sufficient notice to each party's lawyer. They should also consider obtaining the help of independent experts, like child psychologists, if the court gives its permission. The GAL can essentially ask for leave of court for any other tools or strategies that may be helpful when developing their recommendations.

One New Jersey case illustrates the utility in appointing a GAL for custody disputes. In F.S. v R.A.L., the parties shared one child (B.S.) during their nine-year marriage, before ultimately divorcing in 2016. During the case, the custody battle was contentious. Each party presented significant evidence and testimony about the other party’s parenting abilities. This included psychological testing and home-visits to observe each parent interacting with the child in their respective residences. Unfortunately for the wife, she was found by the expert to have a delusional disorder; however, he did not believe her functioning was seriously impaired. One of the delusions she suffered from was that her husband had engaged in sexual abuse with their child. She also believed that her husband was going to physical hurt herself and her child, among other things. In spite of these issues, the judge decided that this was not impairing the child's impression of the father or creating behavioral issues with the child. She granted sole custody to the father, although the mother would be allowed visitation, including time alone with the child and even some vacation time.

The husband appealed. He argued that the trial court was mistaken in not appointing guardian ad litem. The appellate disagreed. First, he failed to request a GAL at any point in the underlying case. He also never made an argument in his appeal about how appointing an ad litem would have made a difference in the case. The appeals court was also persuaded by the fact that the expert offered extensive neutral testimony on both of the parties and the child, which served as a sort of GAL replacement under the circumstances. In this case, the court of appeals found that the trial judge had reviewed all the evidence in great detail and her judgment was supported by sound rationale. Ultimately, the appellate court determined that a GAL should be appointed in cases where, without one, a child's best interests would not be adequately represented. But, in this case, there was sufficient evidence from an independent expert, and a GAL would not have enhanced the evidence for the judge. This is a good lesson for parents and practitioners – if you think a GAL would be useful, then ask for one to be appointed as soon as possible, and not on appeal!

When a GAL is appointed, they must remain neutral and independent when making their recommendations. If you think that the GAL is showing an unfounded bias against you, get in touch with your attorney right away. They can ask the court to disqualify the GAL – however, there is a small window of time to do so. A GAL can only be disqualified before their investigation begins. The burden to show bias is often quite high, usually with secondary evidence of bias (such as a consistent failure to return that parent's phone calls, unfair or unfounded determinations of character, speaking ill of the parent in emails, or the like).

The parties will each be responsible for paying the GAL, who will bill by the hour for their services. The court will then allocate the fee between the parties - meaning that the division will not necessarily be split equally. Once the final invoice has been submitted, the parties will get a chance to respond if they believe that the fees are unreasonable before the court allocates the final fee.

If you have questions about appointing guardian ad litem in your NJ family law case, contact the Law Office of Peter Van Aulen for a free initial consultation today at (201) 845 – 7400.