During divorce and custody court cases, each party is represented by an attorney they hire to advocate for their interests. Even in amicable divorces, attorneys on both sides work on behalf of their clients.
In contentious cases where the allocation of parental responsibility and parenting time is at issue, the law also allows for children to be represented by an attorney but this representation can take on a variety of forms.
The court may appoint attorneys to act as a guardian ad litem (GAL), a child representative (CR), or an attorney for the child (AFC) in child-related dispute. These three types of advocate positions differ in their function within the court case.
The use of a GAL, CR, or AFC in court is considered the next step. Before disputes over decisions regarding the allocation of parental responsibilities and parenting time reach this level, parents are highly encouraged to work out their differences and find a compromise. Case law even suggests that little is to be gained from having a third attorney involved in proceedings.
While the use of a GAL in a custody case adds another layer of procedure, difficult circumstances sometimes make it necessary. The court may order the use of a GAL when parents cannot compromise on the allocation of decision-making and/or parenting time.
The child may also be appointed a GAL when there is evidence of abuse or indicators that a person may be incapable of caring for their children, such as because of drug or alcohol addiction.
GALs are attorneys who are assigned by the court to investigate the circumstances of a family in order to make a recommendation about what would be in the child’s best interest.
To collect information, GALs conduct an investigation of the parents in question, examining their living situation, work, health, habits, and more. They may interview the parents, along with their family members and close acquaintances to gain more knowledge. GALs are the eyes and ears of the Court.
It is not part of the GAL’s role to advocate for the child’s preferences about decision-making or parenting time. While the GAL may interview the child to gather information for the recommendation, they are not required to advocate for what a child wants.
After the investigation, the GAL assembles the evidence into a recommendation to the judge about what they think is the fairest determination of parental responsibilities and parenting time. GALs also can testify in court about their recommendation, with the attorneys on both sides asking them questions, in addition to the judge.
The GAL’s recommendation to the court is an advisory one, and the judge has the authority of whether to rule in line with it. Most judges very seriously consider the GAL recommendations and their rulings regularly reflect their trust in the conclusions reached by these child advocates.
A child representative (CR) is another type of legal representative who advocates for a child’s best interests as to parental responsibilities or parenting time. CRs are attorneys who are appointed by the court to represent a child.
The role of a CR is similar to that of a GAL, in conducting an investigation to formulate a recommendation to the court about the child’s best interests. In addition, CRs also consult with a child directly to determine their wishes and communicate them to the court.
The use of a CR may be appropriate for older children who have the ability to consider their wants and needs for parenting time. The CR communicates the child’s perspective to the court, while also delivering their own recommendation developed with investigation and observation.
CRs do not testify in custody cases, but as a general rule, they can participate in litigation by questioning witnesses, calling witnesses, and otherwise participating in the litigation.
The third type of legal advocate for children who are involved in the allocation of parental responsibilities or parenting time cases are attorneys for the child (AFC). While not the most commonly implemented child advocate, AFCs can greatly aid in cases that involve older teens who feel capable of articulating their needs and wants for the future.
An AFC acts like the other attorneys involved in a case over custody or parenting time. They are an attorney assigned by the court to represent the child involved in the case. Just as each of the parents has an attorney supporting their interests, the AFC works solely on behalf of the children to fight for their desired outcome.
In their role as attorneys, AFCs do not testify in court. They do have the same rights and privileges extended to them by the court as other attorneys in representing their clients. They may file pleadings and motions on behalf of the children, conduct discovery, and call and cross-examine witnesses just like the attorneys for their parents.
Choosing a guardian ad litem, child representative, or attorney for the child
If parents cannot agree on custody or parenting time, either party can request the appointment of a representative in the form of a GAL, CR, or AFC. The court also can appoint one of these representatives, even over objections from one or both parents.
GALs, CRs, and AFCs are all licensed attorneys who have received some training specific to their role as child advocates. An attorney may act as a GAL, CR, or AFC, depending on the circumstances and needs of each case.
One or both parents can find their own GAL, CR or AFC, and provide their recommendation to the court, which may or may not approve. The parties may also collaborate to provide a selection to the court for its ultimate approval.
The judge has the authority to decide which party is responsible for paying the fees for the GAL, CR, or AFC. In divorce cases, the cost may be charged to the marital estate as part of the settlement. Otherwise, the judge decides what allocation of fees is the fairest.
Cases are complicated when they involve a guardian ad litem, child representative, or attorney for the child.
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