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Bar News - October 16, 2009

Family Law: The Role of the Guardian ad Litem


Marilyn McNamara
A guardian ad litem (GAL) serves the court by investigating, facilitating resolution, and serving as a resource for the court. However, a GAL can also add to the stress, slow the process and insert personal bias into the decision-making. Thus, GALs should aspire to the same standard physicians have set: first, do no harm.

The guardian ad litem retainer agreement should set out a timeline, a process and the boundaries of representation. Guardians want lawyers to explain their role to clients; it is very important for clients to understand that the GAL acts in service to the child, not the parents. Therefore, clients should not make a habit of calling the GAL directly.

A GAL should be treated with respect and copied on motions and other filings. In addition, lawyers should not use the GAL as an investigative tool and if a lawyer writes to the GAL, the opposing party should get a copy of the letter. Keep letters short and factual.

If an attorney feels there is a problem with the GALís representation, the attorney should let the GAL know. Donít let concerns fester; early resolution is better than last-minute filings. If the GAL supports your clientís position be grateful, but understand that it is still your case to try.

Never mount a personal attack against the GAL; instead, bolster your case with other experts and witnesses. Strive to present a case for your clientís position, not a case against the GAL, who may change his or her mind in either direction. GALs represent other peopleís children who will continue to be raised within the cultural context of their own families. Itís hard not to substitute oneís judgment for that of the parents.

Consider the Parentsí Point of View

When parents disagree on an aspect of child-rearing, the GALís first question should be, "Is intervention truly warranted?" GALs canít solve every problem and shouldnít try; differences of opinion between parents will rise and fall throughout their lives. In fact, making every decision for the parents creates dependency; parents should use their own resources first.

GALs should not assume that they have the best information available on any given child-rearing issue; to brush away a parentís concerns is to brush away the parent. Successful recommendations and court orders require some degree of acceptance by parents. Dismissive actions or statements do nothing but humiliate the parent: first, do no harm.

We all have beliefs that color judgment; we must learn to recognize and consciously set aside our own opinions long enough to make a reasoned recommendation based on the facts of the case at hand. Itís hard to do this in a family context; our own experiences run so deep we may be unable to recognize that different beliefs are as credible as our own.

Should a GAL Be Neutral?

Bias is an inclination, belief or preference that colors judgment; neutrality suggests a state of disengagement; a disinclination to join the fray. While they shouldnít be biased, GALs neednít be neutral; they should be engaged. The charge is to ascertain the best interests of the child; once the open-minded, free-from-bias, thorough and thoughtful GAL arrives at a recommendation, there is no need to be neutral. GALs are advocates for the best interests of a child Ė and should be advocates.

That said, advocacy does not mean the GAL becomes co-counsel with a parent whose interests align with the GALís recommendations. GALs should make every effort to refrain from sitting with or near the aligned party, having private conferences, exchanging knowing looks, suggesting that the aligned party is the favored party. Alignment has its dangers Ė early adoption of one partyís position over another can blind the GAL to changes that occur during the divorce process.

A parent may feel that the GAL has been unfair no matter how careful the GAL has been Ė and sometimes that parent will be right. Whatever happens, both parties should feel that the GAL has focused on the child in question and has produced work that is intended to serve the interests of the child within the context of the parentsí value systems and practices.

Finally, GALs should be paid for the work they do. If your case is a private-pay case, see that provision for the GALís bills are made during and after the course of the litigation. If you are the GAL, donít let the bill get so high there is no chance of payment. Not sure what to do? File a motion seeking instructions.

Striking a Balance

Parents struggling through one of the most difficult times in their lives often lose the ability to focus on their children or they focus too closely, losing the ability to separate their own interests from those of their children. The GAL helps the court strike the best balance possible, but in the end it is the parents who bear responsibility for producing well-adjusted children.

As dedicated as a guardian ad litem may be, the children most deserving of the guardianís non-stop devotion and sacrifice are the ones who will pick that guardianís nursing home!

Marilyn McNamara is an attorney with Upton & Hatfield in Concord, and NHBA President-Elect. She is the former director of the Legal Advice and Referral Center and has served as a GAL herself. She may be reached at 603-224-7791 or at

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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