South Carolina Code §63-3-810(A)(1) allows the family court to appoint a guardian ad litem in a private custody case when “without a guardian ad litem, the court will likely not be fully informed about the facts of the case and there is a substantial dispute which necessitates a guardian ad litem.” Thus attorneys routinely consent to the appointment of a guardian under the expectation that the court will appoint one anyway. See S.C. Code §63-3-810(A)(2) (authorizing the family court to appoint a guardian in a private custody case when “both parties consent to the appointment of a guardian ad litem who is approved by the court.”)
Yet there are circumstances when a guardian is merely an unnecessary added expense. An obvious example is when there is not a substantial dispute involving custody–sometimes one party merely challenges custody as negotiating leverage. However often there is a substantial dispute but someone other than a guardian may be in a better position than the guardian to investigate and report on that dispute. In this circumstance a guardian can be unnecessary and even counterproductive.
One example are cases in which physical or sexual abuse of a child is alleged and is the primary factor in resolving the dispute. Such cases will often resolve based on a determination of whether the child was abused by one parent or, perhaps, coached by the other parent. Here a forensic evaluator will be the vital witness to resolving the dispute. No guardian ad litem will have sufficient training or experience to dispute the forensic evaluator’s determination and most intelligent guardians will have enough sense not to do so.
The few guardians foolish enough to engage in a factual dispute with a forensic evaluator will needlessly complicate the case. The party who agrees with the guardian and disagrees with the forensic evaluator will refuse to accept the evaluator’s conclusion and thus will be reluctant to settle. Meanwhile the court will almost always side with the evaluator over the guardian when it comes to factual disputes within the evaluator’s expertise. If a party wishes to challenge a forensic evaluator’s analysis, the better strategy is to seek the employment of a different forensic evaluator and then seek leave of the court to have the child evaluated by the new evaluator. Assuming the two evaluators disagree, trial will develop into a battle of forensic experts, but a guardian will have little helpful input to resolve such disputes.
More frequently custody cases involve disputes over whether a child is suffering psychological trauma in one parent’s home or whether and why a child has a strong custodial preference. In such cases a mental health professional for the child (a counselor, social worker, psychologist or psychiatrist) is superior to a private guardian in training, expertise and experience to analyze and report on the disputed issues. Often children involved in custody disputes already have a relationship with such a mental health professional and the expense of a guardian is wasteful (for the very same reasons that guardians may be wasteful in cases involving forensic evaluators). Again if one wishes to challenge the mental health professional’s conclusions, the better strategy is to retain a different professional to provide a second opinion.
A side benefit of relying upon such professionals rather than on private guardians is that these professionals’ fees are often covered under health insurance policies. Reflexively seeking a guardian where such professionals can investigate, report on, and (potentially) resolve the custody dispute often complicates the litigation while wasting the parties’ resources. Thoughtful family law attorneys should consider whether a guardian is useful before seeking the appointment of one.
A related problem arises when mental health professionals do not invite both parents to participate in setting up the counseling, etc. Then the professional is inevitably attacked as being “biased”, even though he/she is not.
Greg, as always, you provide here great insight and advice based upon your extensive experience in the acrimonious world of contested custody litigation. Your post has evoked yet again some thinking and reaction from me which today I wish to share.
The use of experts at pendente lite stages of custody or “visitation” cases is being abused and is wreaking havoc on children and their parents. We lawyers must bear in mind that psychologists who are veterans of Family Court litigation are well aware that with mandatory mediation in place and given the crisis with crowded dockets, most cases will never reach trial. These experts are often brought in, as you noted, to evaluate the children and their parents during the pendency of cases. The experts are often called upon by the guardian ad litem (GAL) or the Court to render a report and recommendation at a temporary hearing. The veteran, litigation-savvy psychologist is well aware that there is little chance he or she will be subject to cross-examination at a mere motion hearing; and that with the case not likely to reach a testimonial merits hearing, he or she will probably not have to testify in a trial. Thus, the expert is essentially unaccountable for the report and recommendation he or she submits at a motion hearing.
Recently, I have encountered three cases where an expert issued a report at a subsequent temporary hearing, and recommended that one parent have absolutely NO contact with the child. The report was submitted to counsel in written form via the GAL merely an hour or so before the hearing, and presented as such by the GAL at the proceeding to a Family Court Judge. The Judge perfunctorily adopted the expert’s recommendations carte blanche, and barred the “losing” parent from all contact pending the final merits hearing. Significantly, the parent barred from contact had never abused or threatened the child; but the expert concluded after a couple of interviews that the parent was having too much influence over the child’s thinking and causing “mental distress.” Moreover, and this especially is maddening, the moving parent had NEVER accused the “losing” parent of such heinous activity. The same expert was involved in all three cases; the losing parent was consistently the father. The expert’s report and recommendation contain factual flaws. Yet because the cases will need four or more days to try, they have not been set for trial for more than a year following the ban on access imposed on one parent.
Like any other lawyer, I am well aware of the wonderful procedural means to attack these draconian results. But I am also a very experienced pragmatist, and know well that judges will be reluctant to disrupt the vaunted expert’s recommendation until a full merits hearing can be held. Of course, as we all know, the promise of cross-examination at a full merits hearing is illusory because the realities I identified above.
Hence, the expert is effectively unaccountable. The “losing” parent will accept a mediated “solution” far short of what may be appropriate just to end the nightmare. The parent and the child are denied justice. This is where we are.