I was recently the lead counsel in a 3-day custody trial. Unfortunately, the opposing attorney and I could not agree on a guardian ad litem (GAL). Accordingly, the Court randomly selected one for us.
Over 1 year later, without any word from the GAL and the GAL failing to respond to my phones calls and letters requesting the status of her investigation, I contacted the Court and got a court date. Three weeks immediately prior to that date, the GAL finally started to “investigate” the case. The investigation was incomplete, sloppy, and obviously rushed. The report was one-sided and riddled with inaccurate statements.
Prior to the report coming out, I had already spoken to the witnesses, including the child’s teachers. I was shocked to read the statements allegedly made by these witnesses, as they were inconsistent with what the witnesses had told me. I was compelled to serve them with subpoenas and they all appeared in court to testify. In short, these witnesses testified under oath that the report was just plain wrong. The GAL had twisted their words and actually fabricated statements. After a three-hour cross examination of the GAL, it was obvious that she had a personal agenda against my client, and, possibly, me.
At the conclusion of the trial, my client asked if there was anything we can do about the GAL, such as, filing a grievance with the State Bar of Georgia. I pondered the idea for a couple of days and actually read the rules of professional conduct. I concluded that the rules do not apply to GALs. Shortly after that conversation, I attended my mandatory GAL training in Cobb County. Ironically, the State Bar of Georgia had someone speak to the group about professional conduct as a GAL. I posed the question to that individual, “was I correct in concluding that the rules do not apply to GAL’s”. I was told that I was correct. She went on to say that I probably saved my client a lot of frustration by advising him to drop the issue. The Bar apparently receives several grievances from parents against GALs and, because they do not have an attorney-client relationship, there is nothing the Bar can do.
I am amazed by that conclusion. I recently visited the State Bar’s website and reviewed a few of the public reprimands of attorneys. Apparently, attorney’s can be subject to sanctions for failing to pay their mandatory bar dues; failing to return phone calls from clients; and failing to diligently represent clients in Court. It makes no sense to me that a guardian ad litem cannot be sanctioned in some form for failing to competently investigate a child custody matter and accurately reporting to the Court. In my opinion, failing to do so amounts to the GAL failing to represent the true client in these custody cases, the children.
It is shameful that GALs can avoid this responsibility/liability on the premise that, technically, that they do not represent the children. They are appointed to represent “the best interest of the children”. This is an obviously flaw in the system that needs to be fixed.