In family law, we often deal with sad and difficult situations like the end of marriages and parents not paying child support. However, there are no more heartbreaking or grueling cases for the parties or for us as attorneys, however, than when a child is in the middle of a bitter custody dispute. The allegations can range from parental alienation to emotional, physical, or even sexual abuse. In these situations, it can be nearly impossible for the Court to determine who is telling the truth. The parties despise each other and one or both of them will go to any length to destroy the other. The child, who didn’t ask for any of this, is caught in the middle with no voice. Luckily, the Family Division Judges, as well as the Dependency Division Judge, in our Circuit have two options to help the children in these high-conflict cases: Guardians ad Litem and Attorneys ad Litem.
Florida Statute 61.401 states that, in a dissolution of marriage action, the Court may appoint a Guardian ad Litem (GAL) “to act as next friend of the child, investigator or evaluator, not as attorney or advocate. The court in its discretion may also appoint legal counsel to act as attorney or advocate.” This is the sole statutory mention of Attorneys ad Litem while the statutes fully set forth the powers, qualifications, and immunity of Guardians ad Litem. Attorneys ad Litem (AAL), on the other hand, are creatures of the Court. The judge who appoints the attorney to serve in this capacity decides what the duties and responsibilities of the AAL are. Without question, however, the AAL acts as an attorney and can file motions on behalf of the child and advocates on his or her behalf. Where a GAL is making a recommendation to the Court that he or she believes to be in the child’s best interest, the AAL is advocating for what the child wants. There are separate statutes for Guardians ad Litem appointed in dependency cases.
The powers an individual judge can give an AAL can range from investigating to being an intermediary between the parties when disputes arise to being a required party on any agreement between the parties involving the child. The judge may decide that he or she wants the AAL to participate in court proceedings just as the parties’ attorneys do. The judge may want the AAL to submit a report with recommendations or just offer a closing argument at the trial. It is up to the individual judge’s preference.
I’ve served as an AAL twice in Family Court. In the first case, I filed motions on behalf of my child client and accompanied her to Court when she was permitted to testify but I did not participate in the trial. I also acted as an intermediary between the parties. In the second case, I was permitted to participate fully in hearings and the trial. In both cases, I interviewed the child as well as the parents and any other person I thought might have information useful to helping me determine what was truly going on in the child’s life. Those interviews helped me to fully advocate for my child clients.
In Dependency Court, Icard Merrill attorney Lindsey Meshberger served as an AAL in an adoption proceeding for a medically needy five year old child. In that case, the Judge asked her to investigate the Department of Children and Family’s concerns that the prospective adoptive parents’ were exaggerating the child’s medical needs to get a higher subsidy. Ms. Meshberger interviewed the child’s doctors, therapists, teachers, and daycare workers and then observed the child to compare what the parents were telling her to what she saw. After recommending and having the Court order psychological evaluations for both parents, Ms. Meshberger recommended the adoption go through. She expressed the difficulty in balancing her concerns regarding the parents’ conduct against the child’s obvious bond with the parents and the consequences for the child if the adoption did not go through.
From my own experience, in one of my cases where the child was old enough to fully understand what was happening, the child sat in my office one day and asked me why the court wasn’t doing anything to protect her. I held my arms wide open and told her that her story was this big and then held my fingers a half inch apart and explained that that was how much the judge had heard of it. Of course, the judge wanted to protect this child but it is so difficult with the parents telling wildly divergent stories and the child’s perspective nowhere to be found. That is where the Attorney ad Litem can step in and change a child’s life.
Every Family and Dependency Judge in our Circuit cares deeply about the children involved in their cases and will do everything possible to act in their best interest but, sometimes, without a volunteer attorney stepping in to be an Attorney or Guardian ad Litem, the truth of the children’s situation will be lost in the battle between the parents.
Originally published in the May 2015 issue of the Sarasota County Bar Assocation’s The Docket