Understanding the Requirements for a Guardian Ad Litem in Virginia and Whether a Parent Can Seek to Have the Guardian Removed During a Custody Case
In Virginia, if you’re going through a divorce and a subsequent child custody case, the circuit court will likely order a guardian ad litem (GAL) to be appointed to your custody case.
A GAL is essentially an experienced attorney who impartially monitors and evaluates both parents’ behavior with the child, the child’s living conditions, and much more.
They are specifically trained to help identify which parent will be better for the child as a primary caregiver. In addition, they only act in the best interests of the child.
Towards the final stages of your child custody process, the guardian ad litem will be called in as a witness to present his evaluations and testimony in front of the judge, explaining (with facts) why the mother or the father is better suited to be the custodial parent.
Plus, the GAL will also provide unbiased references and recommendations to the judge backing their claims and proving how their decision is wholly in the best interests of the client’s child or children.
Understanding the Role of a Guardian Ad Litem
It is essential to understand that the Virginia Circuit Court, in child custody cases, can only appoint a guardian ad litem in cases where the child is a minor or in a situation where an adult or child is incapacitated.
In the state of Virginia, it is typical for the courts to appoint a GAL specifically in cases where the custody is highly contentious and disputed by either parent or neither parent is agreeing to create a visitation schedule.
When a GAL comes into the picture, they must represent the child. Yes, it is the child who is their primary client. They must responsibly and impartially work in the interest of the child, advocating for them.
Guardianship in custody cases can be a very lengthy process. It comprises several methodologies such as conducting interviews of both parents jointly and individually, this can also include the child.
The GAL will also conduct interviews with close neighbors, the child’s physicians, schoolteachers, close friends of the family, vital third parties, and more.
They essentially start a thorough investigation, which often includes expert testimony from individuals such as psychologists and daycare specialists.
The GAL will also conduct frequent unannounced home visits through which they will observe the day-to-day aspects of the parents (those who are competing for visitation). During this time, they will have full authority to access the parent’s and child’s medical records, disciplinary paperwork, report cards, and more.
Moreover, the guardian ad litem will also be called to the stand to testify and present their evidence and reports, making a calculated recommendation, one that is in favor of the child.
It is important to understand that a GAL has no vested interest, they are there to ensure the safety and security of the children they represent.
How Likely Is It That the Court Will Appoint a GAL in Your Custody Case?
Simply put, it is probable the judge will appoint one in your case. However, it is also important to know that the judge will also review and evaluate the circumstances of your case. For example, in cases where both parties agree to the visitation schedule set, no matter how contentious the divorce was, the judge may not appoint a GAL.
However, in cases where both spouses are contesting the custody case, refusing to identify a middle ground, here, it is very probable that the judge will appoint a guardian ad litem. However, under Virginia Code 16.1-266 (F), the court is limited in its options to appoint a GAL in a custody case where both parties have appointed attorneys.
Is It Wise to Request a GAL Appointed in My Custody Case?
Looking at it from a broader perspective it is safe to say that having a guardian ad litem appointed to your case could turn out to be an intuitive decision. Why? Well, GALs can have a very impactful effect on your custody case as their observations, evidence, and testimony are seriously considered by the court.
This is mainly because of the authority granted unto them. They can represent the court outside of the system in terms of conducting thorough interviews, gauging different perspectives, understanding and evaluating the environment the child lives in, and much more.
However, if you are indeed considering requesting the court to appoint a GAL, it is just as vital to consult with your family attorney. After all, the GAL will not represent you, they will represent your child.
Factors that Can Warrant the Removal of a GAL
Removal Via the Court System
While GALs are given extraordinary authority over child custody cases, they are also legally mandated to perform their duties with a high degree of competence and accountability. They are required to submit timely reports of their observations, as well.
However, if the judge sees that GAL is not performing acceptably, they have the power to remove them from the case. Subsequently, the court can also strike off the name of the GAL from a list of GAL candidates so that the individual may not be recommended in future cases.
Misconduct
Because a guardian ad litem is also an attorney, they like other attorneys, are required to practice within the confines of the rules and stipulations mandated by the Virginia State Bar. With, if a GAL does not observe the said legal parameters and proceeds to act outside the boundaries of ethical laws, the parents can report their misconduct to the court.
For instance, in a GAL-driven custody case, the guardian will be required to uphold the confidentiality of the client’s representation. Violating this would mean that the GAL has acted unprofessionally, compromising their ethical obligations.
Another example where you can have the GAL removed is if there is any conflict of interest involved. For example, if a GAL is appointed to a specific custody case whereby their actions would have an impact on the GAL’s other client, this would be known as a conflict of interest.
Petitioning a Request to Have the GAL Removed
Upon reasonable evidence of misconduct or conflict of interest, one or both parents can file a petition against the guardian ad litem, requesting the court to remove them. However, it is possible that the GAL may not entirely be taken off the case as there will be certain areas where their testimony would be required.
The petition must be handwritten and must be filed in the court where the GAL was appointed. In addition, the parties must include valid reasons why they wish to have the attorney removed.