What Not to Say to a Guardian Ad Litem

Even though a guardian ad litem is an attorney, the guardian ad litem is usually allowed to talk directly with the parents, even when their attorneys are not present. This makes most parents in a custody dispute nervous. Most parents are concerned that they will say something to the guardian ad litem that will hurt their child custody case. 

In general, when speaking to the guardian ad litem, a parent should always be cooperative, honest, polite, and professional. A parent should consider every conversation with the guardian ad litem to be part of the guardian ad litem’s investigation.

Any remarks made by the parent during the conversation may be taken into consideration by the Guardian Ad Litem when deciding which parent should have custody of the child. 

In a contested child custody case, the judge will appoint a guardian ad litem to represent the children and order the guardian ad litem to do an investigation. The guardian ad litem will go to both parents’ homes, look into the allegations that are being made by the parents, examine claims of abuse or neglect, and interview the parents and the kids.

The guardian ad litem will also speak with teachers, daycare providers, physicians, and other parties or family members involved in the child’s care.

10 Things to Never Say to a Guardian Ad Litem

When the guardian ad litem comes to talk with you about the case, it is important to be prepared. It is also important to know what not to say. The following is a list of things not to say when being interviewed by the guardian ad litem.

1. “The other parent is the worst parent ever”

You should avoid making negative comments to the guardian ad litem about the other parent unless the guardian ad litem specifically asks you a question related to the character or behaviors of the other parent. Do not volunteer this information. Spending your time making negative comments about the other parent may backfire and give the guardian ad litem the impression that you are the source of conflict in the parenting relationship.

If negative things are to be said about the other parent, leave that up to your attorney. Your attorney is the appropriate person to inform the guardian ad litem of the other parent’s negative character or behavior. 

2. “I’m not answering that question—that’s private information.”

When it comes to child custody cases, very few topics are off-limits for the guardian ad litem. A Guardian ad litem can inquire about your lifestyle, parenting style, finances, home environment, and the other adults who will be around your children. Guardian ad litems are required to decide which parent’s home will be the best for your child.

Digging into sensitive information is the guardian ad litem’s job, and obtaining this information for the court will have priority over your privacy concerns. While sometimes challenging, this is all necessary information for the guardian ad litem to consider. Remember, the guardian ad litem’s job is to determine which custody arrangement is in your children’s best interests. That sometimes requires digging into sensitive issues.

3. Saying “my” kids” as opposed to “our” kids.

Instead of saying “my” kids, use “our” children when referring to your kids. It is less antagonistic and more inclusive. Make an effort to frame your comments in terms of what you two, as parents, can do collectively to make the experience as pleasant and easy as possible for your kids.

A person who seems possessive of their children will not be found to be the parent who fosters a relationship between the children and the other parent, which is one of the factors the Guardian Ad Litem will consider when establishing a custody arrangement. This could be a warning sign for the Guardian Ad Litem.

4. Being argumentative and raising your voice with the guardian ad litem.

Do not let your feelings control you. Despite everyone’s best efforts, there will inevitably be instances during a child custody case when you will be tempted to lose your cool.

Ensure you do not lose your temper in front of the guardian ad litem. Losing your temper in front of the guardian ad litem will likely undermine your custody case. Although guardian ad litems are skilled at soothing emotions, request a brief break if you are about to lose your temper during the interview.

5. “I won’t answer that question without my attorney present.”

The guardian ad litem may speak directly to all parties to the case, even when their attorneys are present. When dealing with the guardian ad litem, a parent must always be courteous, responsive, cooperative, and professional. A parent’s lack of cooperation with the guardian ad litem may prove harmful when it comes to achieving the desired custody outcome.  

6. Don’t spend your interview time with the guardian ad litem complaining about non-custody issues you have with the other parent.

Don’t spend your time bringing up marital troubles that have nothing to do with the kids. Do not muddy the waters by bringing up anything that is not explicitly linked to custody and parenting time. Keep in mind that this is not a like a divorce mediation.

This is a guardian ad litem interview attempting to gather information on who will get custody of the children. Don’t spend your time with the guardian ad litem reciting a long list of things you dislike about the other parent.

7. Don’t make excuses for your past mistakes.

If you are questioned about past mistakes, don’t make excuses. Instead, own your mistakes. Emphasize how you have learned from your past mistake and that you are now better at handling those situations. Making excuses for your mistakes makes you look immature and capable of repeating the same mistakes in the future.

8. “I’m not going to take a drug test.”

Whether or not you are drug-free will be important information for the guardian ad litem to know. If the guardian ad litem wants you to take a drug test, you should take it. If you know that you will fail the test, let your attorney know so your attorney can discuss it with the guardian ad litem ahead of time.

9. “I don’t need anger management classes.”

If the guardian ad litem wants you to participate in anger management classes, agree to do it. Your refusal will make you appear to be an angry person who always thinks they’re right. 

10. “What about my rights!” 

Don’t spend your time with the guardian ad litem discussing “my rights.” Child custody is not about your rights. The children matter to the guardian ad litem and the judge, not the rights of you or the other parent. Stay focused on what is best for your kids.

The process of navigating a contested child custody case can be challenging. Add in the fear of saying something wrong to the guardian ad litem, and the whole thing can be overwhelming. Remember that the guardian ad litem’s primary responsibility is to determine the bests interests of the children. The guardian ad litem is just trying to get to the truth of the situation.

Try to remember that the guardian ad litem is not your enemy. Being on your best behavior and being completely honest with the guardian ad litem can help you achieve your child custody goals.

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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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