When Is A Guardian Ad Litem Or Custody Evaluator Needed?
It’s not mandatory or necessary in all cases. A guardian ad litem, at least in the state of Utah, is an attorney. Many states have laypeople guardian ad litems that have no legal background, that simply talk to the child and then report to the court. In Utah, guardian ad litems are attorneys and represent a child in the same way that an attorney would represent a custody litigant, the only difference being that they are neutral and they don’t have an axe to grind against mother or dad. They are obviously representing a child which would in some ways be different.
A guardian ad litem is most often requested if there is abuse or neglect allegations or the court believes the child needs an advocate to protect the child from abuse, neglect, high parental conflict, or if the court has concerns about both parents and cannot determine where the best interests of the child lies because both parents have enough deficiencies to cause the court concern about placing the child with either parent. Any parent can request the appointment of a guardian ad litem. Who pays for the “GAL” is the trickier question.
It used to be that the Utah Office of Guardian Ad Litem was appointed only in custody cases as opposed to juvenile court where abuse or neglect was an allegation. However, in 2013, the legislature determined that the public office of guardian ad litem would no longer be used that way. Now it is only to be used for juvenile court or in protective order cases in district courts. It means that if somebody wants a guardian ad litem to be appointed, the fee of that private attorney guardian ad litem would need to be addressed. If either party volunteers to pay the cost of the private guardian ad litem then they can do, so but more often they only wish to pay half of the fee and ask the court to order the other side to pay half the fee.
Any custody case can benefit from the services of a competent and qualified custody evaluator, particularly if there are aspects of the case which complicate finding out what is in the best interests of the child. Mental health issues of a parent or a child, substance abuse issues, domestic violence issues, ongoing criminal behavior, defiance and rebellion of a child, and alienation are a few examples of when a custody evaluator might particularly be considered. A custody evaluator is usually a psychologist who has specialized training in forensics. Forensics may be defined as using one’s expertise to help the court in making a finding or in recommending to the court what the court should order. That differs from the psychological treatment and so the rules are a little bit different.
In a normal case, in the absence of the complicating factors that I mentioned, custody evaluation may not be necessary. They are often very expensive. However, another reason to use a custody evaluator is to reduce the number of witnesses that must be called at trial. The court is not allowed to consider certain types of evidence, such as hearsay for example. Some attorneys choose to obtain statements or interviews from many witnesses and then they submit that information to the custody evaluator and then have a that evaluator as a single witness on the stand to report what data the custody evaluator considered in reaching his or her determination about what is in the child’s best interests, including the statements and data received from others.
Let’s suppose that the custody evaluator were to interview both parties, including all the family members on each side, the daycare provider, and teachers from school. The custody evaluator would be able to report on what they observed and how they formed their opinion about what’s in the child’s best interests. Sometimes a custody evaluator can actually reduce the cost of trial by consolidating the amount of evidence into the testimony of a single witness. That is another legitimate reason to use a custody evaluator. The parties can agree on a custody evaluation or either party can file a motion to ask the court to order a custody evaluation. At that hearing the court can determine who is going to pay for it.
Does A Child Ever Have To Appear In Court On A Custody Matter?
This is extremely rare, to the point where I’ve only seen it a handful of times. There is a statute in the state of Utah that in a custody case, neither parent can compel the child to testify unless there is a compelling reason to do so and there is no other reasonable method for the child’s testimony to be reconsidered. That last factor, whether there are a reasonable alternative means to get a child’s testimony in is the factor that most frequently eliminates the need for a child to testify. For example, if a child reported something significant to a therapist and the therapist used the child’s statement as part of their diagnosis and treatment, then the therapist would have a legitimate reason to testify to what the child said.
If there is a custody evaluation then the custody evaluator can report the statement of the child. Sometimes the guardian ad litem can interview the child and report to the court. If there are police reports or Division of Child and Family Services or Child Protection Services records where the child was interviewed or made a statement, those records might be allowed or a DCFS case worker might be allowed to testify. There are various methods by which a child’s testimony can be admitted, so it’s very rare to require the child’s testimony in Court. In a handful of cases I have also seen the court do what’s called an “in camera” interview with the child where the judge takes the child into the chambers and has a conversation and interviews the child.
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