By: Amber Godfrey
Ms. Godfrey has been practicing law for 13 years. Prior to joining WhitbeckBennett, she founded her own private practice in 2016 in Oklahoma City. She focuses on family law, which includes divorce, child support, custody modifications, Guardian ad Litem, adoption, and guardianships, as well as estate law which includes estate planning, probate. To learn more about Amber Godfrey, click here.
Guardian ad Litem or Attorney for the Child: Part I
When parents are faced with custody issues, and consensus is not on the horizon, oftentimes, the Court needs some guidance and assistance as to what would be in the children’s best interest. The Court has the complete ability to make that decision; however, to avoid the expense of parading teachers, doctors, counselors, neighbors, and the like through the Courtroom, the Court can utilize someone called a Guardian ad Litem (also known as “GAL”) as an “arm of the Court” to synthesize the information and would-be testimony from these persons. Where this gets confusing for parties is that they often will refer to the GAL as “the child’s attorney,” particularly when explaining to the child what role that person plays for them. This is not exactly accurate, though.
While not completely wrong in theory, it is wrong in procedural execution—meaning the official role of this person, as far as the Court is concerned, is vastly different than how they are perceived by the parents. Moreover, an attorney for the child can be utilized if requested by or for the child, whereas a GAL is appropriate when we have “warring parents,” and custody is at issue. (For reference, please see: Kahre v. Kahre, 1995 OK 133, 916 P.2d 1355.)
Though specific aspects of a Guardian ad Litem or an attorney for the child may vary from state to state, there are general underlying similarities. Specifically, though, in Oklahoma, an actual attorney for the child has complete confidentiality with that child, is not permitted to talk to the other parties independently, must follow or relay what the child wants (within reason—they cannot help to further ongoing criminal activities of the child, etc.), regardless of how it may negatively impact their best interest. For example, if the child says, “I want to live with mom because she gives me ice cream every Friday for breakfast,” the attorney must tell the Court that the child wants to live with the mother. It would possibly be a violation of attorney-client privilege to tell the Court why they want to live with their mother, as the Court could possibly rule against them for that reasoning not being healthy or best for the child.
A Guardian ad Litem, however, will interview the child or children, parents, doctors, counselors, teachers, friends’ parents, neighbors, extended family members—you name it—in an effort to piece together a complete picture of the child and the dynamics of their family, to come up with an objective, third-party assessment of what is best for the child overall. Ultimately, their assessment may align with what the child or children want, it may align with what one of the parents want, it could be a hybrid of some or all of those persons’ wishes, or it may even be a completely different assessment and opinion than anyone else had yet to consider.
Notably different from a child’s attorney, GALs do not have complete confidentiality with anyone in the case. In Oklahoma, they are to maintain it as much as possible with the children, but sometimes that is not possible if they need to divulge serious concerns or abuse of the children. They most especially do not have confidentiality with the parents. The parents have confidentiality with their attorneys, but anything said to a GAL by them is not confidential and can be used in any way that the GAL needs to further the children’s best interest. Parents need to be aware of this when speaking with the GAL so that they remain transparent and honest with them, while not necessarily divulging information that their attorney would like to keep confidential, even just for the moment.
Guardian ad Litem or Attorney for the Child: Part II coming soon.