What is a Guardian Ad Litem and Do I Need One in My Custody Case?

By: Christy O’Brien, Esq.

In a high-conflict divorce or child custody case, a Florida court may appoint a guardian ad litem to help investigate the dispute and ensure that a child’s best interests are fully protected. If you are interested in having a guardian ad litem appointed in your case, it is important to understand the role of a guardian ad litem in a family law case.

What is a guardian ad litem?

Under Florida law (Florida Statutes §61.403), a guardian ad litem is a court-appointed representative who is tasked with acting as the “next friend of the child.”  While their duty is to help protect the child’s best interests, a guardian ad litem is NOT a child’s “lawyer” or “advocate.” Instead, it is better to think of a guardian ad litem as an investigator or an evaluator.

What does a guardian ad litem do?

A guardian ad litem is a fact finder. In high-conflict family law cases in Lee County, Florida, this person will likely be an experienced family law attorney who has received training to be a guardian ad litem.

A guardian ad litem serves as an investigator who works on behalf of the court, with the main purpose of determining what is best for the child. The guardian ad litem can address any issues that the court finds necessary to investigate, including relocation, parental responsibility or decision-making, timesharing, or alienation.

A guardian ad litem will conduct interviews of the parents involved in the case and will talk to the child directly. You should expect that the investigation will be detailed and include home visits as well as interviews with the child’s teachers, therapist, doctors, grandparents, and other important people in the child’s life. A guardian ad litem will also review the court file and all other important records in the case. As a parent, it is crucial to keep open communication and a respectful positive relationship with the guardian ad litem that has been appointed in your case.

Understanding Florida’s “Best Interests of the Child” Standard

Under Florida law (Florida Statutes §61.13), family law courts look to the “best interests of the child” comprehensive legal standard to make determinations in child custody and time-sharing disputes. The guardian ad litem is fundamentally a neutral party that will help to ensure that a child’s physical safety, psychological health, and emotional well-being are properly protected. In his or her report, the guardian ad litem will make recommendations to the court using the factors set forth in Florida Statute § 61.13 and §61.13001, if the case involves a relocation.

Florida courts rely on a guardian ad litem’s recommendations, but the judge makes the final decision

Florida family law court judges take the recommendations of a guardian ad litem very seriously. Through the nature of the position, a guardian ad litem will have access to considerable sensitive information about the child and about the case. The guardian ad litem serves as the court’s “eyes and ears” to provide the court with access to information and witnesses that a court would not otherwise have. As such, the guardian ad litem’s view of the case and recommendations are important to the court. However, it is important to stress that the guardian ad litem does not make the final decision in any child custody or child visitation case. Courts cannot delegate decisions to a guardian ad litem, and the ultimate authority belongs to the judge.

Assistance in Southwest Florida

I am fortunate to be part of a group of Lee County and Charlotte County attorneys who have received this training and have also trained other attorneys who wish to become a guardian ad litem. If you should have questions and would like to set up a consultation for a divorce or guardian ad litem services, or have the need for a speaker to a professional group on the guardian ad litem program in Florida, I may be reached at christina.obrien@henlaw.com or by phone 239-344-1279.