Who Pays For a Guardian Ad Litem In A Divorce?

If you are in the middle of a child custody dispute, the court will likely appoint a Guardian ad Litem to represent your children, conduct an independent investigation into the facts of your case and recommend which parent gets primary custody of the children.

In most cases, the court will order both parents to share the guardian ad litem expenses equally, or the costs may be divided based on their respective incomes or financial abilities. However, in some cases, the court will assign the responsibility for paying the GAL fees to one specific party.

This article will explore the key factors courts consider when allocating Guardian ad Litem (GAL) fees in divorce cases.

What is a Guardian Ad Litem?

A guardian ad litem is either an attorney or a court-appointed representative who acts as a child’s “next friend” during a family court case. The guardian ad litem’s duty is to protect the child’s best interests. It is important to understand that the guardian ad litem is not your child’s lawyer. Instead, the guardian ad litem acts as an investigator and advisor to the court. 

What Factors Does a Court Consider When Allocating Guardian Ad Litem Fees?

When allocating Guardian ad Litem (GAL) fees in divorce cases, courts consider several factors to ensure a fair distribution of the financial responsibility.

Some key factors include the financial resources and income of each party involved, the complexity of the case, the number of children, the time and effort required by the GAL, and any relevant special circumstances.

The court aims to balance the equitable sharing of expenses while prioritizing the best interests of the children throughout the process. By considering these factors, the court aims to make a decision that is reasonable and fair for all parties involved.

In one divorce case I was involved in, a couple was unable to agree on the custody arrangements for their two young children. The mother accused the father of being emotionally abusive to the children.

During the proceedings, the court appointed a GAL to independently investigate and represent the children’s best interests. The GAL conducted interviews, reviewed documents, and spent several hours assessing the situation to provide a comprehensive report to the court.

As the divorce proceedings progressed, it became evident that the mother, who had been the primary caregiver for the children, had limited financial resources. The father, on the other hand, was financially well-off due to a successful business. The court recognized this stark imbalance in financial resources between the parties.

Considering the importance of the GAL’s role and the need for a thorough investigation, the court decided to order the father to bear the entirety of the GAL fees. The decision was based on the court’s determination that the father had the financial means to cover the expenses and that it would be unfair to burden Sarah with the financial responsibility.

The court’s decision not only relieved the mother of the financial strain but also emphasized the principle of fairness and equity in allocating GAL fees. It served as a reminder that the court’s ultimate goal is to prioritize the well-being of the children and create a level playing field, even in financially imbalanced situations.

How Much Does a Guardian Ad Litem Cost?

Usually, the guardian ad litem fee is paid for by the parties. The judge will appoint a guardian ad litem and specify their fee, including how it will be paid. The judge will often set the guardian ad litem’s hourly charge, which can range from $100 to $400 per hour or more depending on the guardian ad litem’s level of experience, and will also ask each party to pay a sizeable deposit, usually $1,000 or more.

In cases where the parties need a guardian ad litem but cannot afford to pay for one, they may be required to make monthly payments toward the guardian ad litem’s fees while the case is pending.

Legal Tip: Most courts will not grant a final trial setting until the guardian ad litem fees are paid in full. In some circumstances, the state might pay the guardian ad litem’s fee, but this is uncommon in disputed divorce cases.

What Does a Guardian Ad Litem Do in a Custody Dispute?

A guardian ad litem acts as an investigator, informing the judge of facts and making recommendations to the judge regarding the placement of the children. The guardian ad litem’s primary responsibility is to decide what is best for the children. The guardian ad litem will look into anything the court thinks is important, like abuse and neglect, drug and alcohol addictions, parental alienation, custody rights, and visitation.

The guardian ad litem is responsible for performing home visits and inspecting the parents’ homes and living situations. A guardian ad litem will interview the parents and speak directly with the child. The investigation will be thorough and include home visits and interviews with teachers, therapists, daycare workers, doctors, grandparents, and other important people in the child’s life.

The guardian ad litem will also examine all discovery documents and the court file. Maintaining open communication and a respectful, positive relationship with your guardian ad litem is crucial as a parent.

Guardian ad litems must also investigate the parents’ and children’s wishes related to custody. Guardian ad litems are supposed to ascertain the child’s wishes and convey them to the court; however, neither they nor the court is bound by the child’s wishes.

What Does Acting in the Child’s “Best Interest” Mean?

Most courts address custody issues under the “best interests of the child” standard. Child custody and visitation disputes are decided according to the “best interest of the child” standard. The guardian ad litem’s job is to ensure that the child’s physical, mental, and emotional well-being is protected. That is what it means to act in the “best interest of the child.” 

What Takes Place During a Guardian Ad Litem Investigation?

The guardian ad litem must do a thorough and in-depth investigation before formally recommending to the court where or with whom a child should live.

The following is what a typical guardian ad litem investigation will entail:

  • Perform a home inspection to address concerns about an unsuitable living arrangement for the child.
  • Meet with each parent separately to give each parent enough opportunity to voice their concerns and their desires related to child custody and visitation.
  • Meet with the kids and have a private interview with them outside the presence of the parents.
  • Have an opportunity to observe each parent interacting with the children.
  • Research each parent’s criminal and civil court records. The guardian ad litem will also research the criminal records of any person living with the parents.
  • Meet with grandparents, siblings, parents, teachers, childcare providers, and friends.
  • Speak with any significant other that a parent is living with.
  • Ask that the parties sign the necessary medical releases to release the parents’ or child’s medical records. This is necessary in cases where allegations have been made of drug use, alcohol abuse, or medical impairments that could impact a custody decision.
  • The guardian ad litem can ask the court to order that the party or parties submit to an independent psychological assessment if there is a question about their mental capacity or mental health.
  • The guardian ad litem can call in a social worker to do a home visit if there are concerns about an unsafe living environment for the children.
  • The guardian ad litem will obtain and review all pleadings and depositions related to the case.

It is not uncommon for parents to be very nervous about a home visit or interview with the guardian ad litem. For additional information on this topic, we have articles addressing the “dos and don’ts” of your interactions with the guardian ad litem and an article addressing what not to say to a guardian ad litem.

How Much Weight Do Judges Give to Guardian Ad Litem Recommendations?

Most judges take the recommendations of a guardian ad litem very seriously. Due to the nature of the position, a guardian ad litem will have access to a great deal of sensitive information about the child, the child’s parents, and the case. The guardian ad litem acts as the court’s “eyes and ears” to give it access to evidence and witnesses that it otherwise wouldn’t have. 

“Most courts rely heavily on a guardian ad litem’s recommendations, but the judge is the person who makes the final decision on custody and visitation.”

Tim McDuffey – Attorney at Law

As a result, the court values the guardian ad litem’s assessment of the situation and recommendations. It is crucial to emphasize that in any case involving child custody or visitation, the guardian ad litem does not have the final say. The judge has the ultimate authority to determine what is in the best interest of the child. The judge is the person who will decide custody placement and visitation rights.

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Tim McDuffey is a practicing attorney in the State of Missouri. Tim is a licensed member of the Missouri Bar and Missouri Bar Association.

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