The Confusing Role of the Guardian Ad Litem

The role of the Guardian ad litem (GAL for short) took hold in the 1970’s. It came

shortly after the advent of no-fault divorces. It was aided by a common understanding that the

application of the best interest of the child standard was not necessarily protecting children.

Judge were looking for something to help them make decisions regarding custody and the GAL

system was born.

It has been my understanding that about one-half of all first time marriages end in

divorce. Many of these first marriages result in children being born. In many instances, there

are battles about custody. The guardian-ad-litem (the GAL) gets involved in these battles.

In New Hampshire, the GAL is a full party to the divorce proceeding. The GAL has a

seat at the table although it is often way to the side of counsel table. The GAL can call

witnesses. They can and often do testify. They can cross examine. There are occasions when

GAL reports are sealed. In that fashion, neither parent can see what the children may have

revealed to the GAL. I would say sealed GAL reports are not the norm but it occasionally


Divorce proceedings are often adversarial positions. As such, all participants in a

divorce, including the judges, have come to realize that the litigants themselves cannot and do

not always represent the child’s interests. From this adversarial fog has come two views of the

role of the GAL. The first role for the GAL is that the GAL is like another lawyer in the case –

with their client being the child or children. The second role is the more prevalent role – that the

GAL is like an expert investigator. In this role, a GAL is viewed as a neutral party who provides

the judges will reliable and valuable information about the family dynamic. Frequently, but not

every time, the GAL will make a recommendation as to custody. This recommendation sets up

an unspoken-of presumption as to what is in the children’s best interests. If a client is on the

short end of the recommendation, they must overcome the guardian’s recommendations – and

that isn’t always easy to do. When this happens, the GAL becomes the lawyer’s enemy.

Guardian ad litems are more active these days than ever in promoting the resolution of

conflict. The GAL often promotes mediation and settlement talk. They often try to broker

agreements. They promote negotiation and mediation at every turn. The GAL role can extend

beyond the initial resolution of custody. The court can order that the GAL remain on board for a

period of time to help the parties and the children make a transition to divorced life.

I fully understand the value of the GAL system. I can see why judges want the GAL’s

input. I would want it too if I was a judge. At the same time, I can see that the GAL can get over

their head and I’ll give an example. On one occasion, I represented a mother who was charged

with attempting to murder her husband. Following the incident leading to her arrest, the parties

began divorce proceedings. As one would expect, temporary custody went to the father.

Forensic evidence was developed that suggested that there was no attempt to murder at all. The

GAL was made privy to this evidence but was overwhelmed by it. Since the mother likely would

have had custody in this case but for the suggestion of attempted murder, it was necessary for the

GAL to understand why the mother didn’t do what the father said she did. The GAL in this case

stumbled because she wasn’t used to such evidence.

An experienced GAL will tell you that they get into all kinds of messes and see and hear

all kinds of things. It must be very confusing to be a GAL. I wonder sometimes how they do

their jobs as well as they do.