Guardians ad Litem: A Powerful Tool or a Potential Risk?

Minnesota divorce and child custody laws presume parents make decisions for their children that are always in their best interests.  After all, parents unconditionally love their children and best know their particular needs, quirks, wants, and wishes.  What happens when parents disagree with who should have what sort of legal and physical custody and what exact parenting time schedule ought to be used?  What if one parent alleges the other is physically or emotionally abusive, is chemically dependent, or is somehow neglectful of the children?

Minnesota Statute Section 518.165 explains a judge can appoint a Guardian ad Litem, who is part of the court system.  The appointment is either mandatory when it is believed a child is an abuse victim or permissive when there are no claims of abuse or neglect but a judge needs an independent person to look more closely at the family.  Parents each pay the court system approximately $2,000.00 for the Guardian ad Litem appointment.

A Guardian ad Litem is tasked to be an investigator, which usually includes:

  • talking and meeting with parents and children together and separately, depending on the children’s age
  • talking with children’s teachers, daycare providers, therapists, doctors, and other professionals
  • requiring parents to sign releases of information to speak with professionals and obtaining copies of medical or therapy records, school records, chemical dependency evaluations, treatment records, and other private data
  • talking with close family members
  • reviewing the court file and any prior court Orders.

The Guardian ad Litem takes this information over a period of months and puts together a report to the judge, the attorneys, and the parents giving his or her recommendations about what should happen with legal custody, physical custody, and the ongoing parenting time schedule.  Judges give significant weight to these reports which can lead some parents to believe they “rubber stamp” the Guardian ad Litem’s findings and recommendations.

State funding for the Guardian ad Litem program in Northeastern Minnesota has been so poor judges could not appoint Guardians ad Litem.  Current limited funding allows Duluth area judges to very selectively appoint a small number of Guardians in family court cases.  It is unknown for how long – and if – the Guardian ad Litem program is going to be fully funded to adequately meet family court needs.

Parents have high hopes the Guardian ad Litem’s recommendation to the judge is helpful to their divorce or custody case.  They want this professional to see and know their truth about abuse, chemical dependency, mental illness, or neglect.

Guardians ad Litem are humans; they are imperfect and make mistakes.  They must be unbiased and neutral when they work with families but not every parent feels they are.  Some parents believe the Guardian ad Litem has fully listened, talked to the right professionals, and spent enough time to understand the family.  The parents may find the Guardian ad Litem relied on false facts or statements made by the other parent, professionals, or others during the investigation.  Parents want a recommendation that “gets it right” with recommendations that are in the best interests of the children. 

Guardians ad Litem play an important – and powerful – role in custody and parenting time cases.  Every parent ought to speak with a family law attorney to weigh the pros and cons of a Guardian ad Litem appointment in their divorce and custody case.

If you need to talk to a divorce or custody attorney, complete this consultation form to talk to Jessica Sterle. She can help you navigate family court law in Minnesota.

Jessica Sterle

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