In recent years, the use and appointment of a guardian ad litem (“GAL”) in contested custody matters has become increasingly common. Guardians ad litemcan be very helpful when their role conforms to the specific parameters set forth by the court rule. Unfortunately, a GAL may be less helpful, or perhaps overreaching, when used outside the scope of the rule. For example, a GAL may take on the role of a mediator, a parent coordinator, custody evaluator, or another form of problem solver, in an effort to help bring a case to conclusion when, in fact, their intended role is actually confined to an investigative arm of the court.

This becomes more problematic when the GAL is an attorney, rather than a mental health professional, who is tasked with making a custody and parenting time determination. As family law attorneys, we are zealous, we are problem solvers, and we want to always do our best. As a result, while a GAL may attempt to help a case by exceeding their charge, one must ask: Is such a role appropriate under the court rule? Moreover, while a GAL may believe he or she is moving the litigation toward a conclusion by exceeding the role set forth by court rule, many times, the GAL does not help but, rather, further exacerbates the litigation. Given the confusion and lack of clear understanding surrounding GAL appointments, this article will explore the nuances of the role of the GAL in the context of contested custody cases and litigation.

Pursuant to New Jersey Court Rule 5:8B, the GAL’s role in the family part is to render services to the court on behalf of the child. The GAL shall conduct an investigation and file a written report with findings and recommendations. The GAL is further vested with authority to engage other professionals. Simply put, a “guardian ad Litem acts on behalf of the court for the benefit of the child and serves as an independent factfinder, investigator, and evaluator of what furthers the best interests of the child.” Isaacson v. Isaacson, 348 N.J.Super. 560, 574 (App.Div.), certif. denied, 174 N.J. 364 (2002).

Notably, the comment to the rule explicitly states that “The GAL can be an attorney, a social worker, a mental health professional or other appropriate person. If the primary function of the GAL is to act in the capacity of an expert, then the court should ordinarily appoint a GAL from the appropriate area of expertise.” This comment may have many attorneys bewildered. After all, GALs are frequently appointed or asked by a court to render comprehensive custody and parenting time recommendations. But how can a court rely more on an attorney lacking any expert background or training in matters related to custody and parenting time, as compared to a mental health professional trained to render custody evaluations? Indeed, to that end, “[s]imply because the report was issued by a court-appointed expert does not elevate it to a higher level than any other expert report.” K.M. v. S.M.M., 2011 WL 3176534, at *19 (N.J. Super. Ct. App. Div. July 28, 2011).

The Supreme Court in Matter of M.R., 135 N.J. 155 (1994), specifically cautioned against a situation where an attorney appointed as a GAL “assume[s] a hybrid role of attorney/social investigator.” Id, citing Family Division Practice Committee Report (1994). That is precisely what routinely occurs in family matters, i.e., where an attorney exceeds his or her training and renders a social investigation relative to custody and parenting time.

The court made the same distinction in Matter of Adoption of a child by E.T., 302 N.J. Super. 533, 539 (App. Div. 1997):

There is, of course, a distinct difference between a law guardian as provided for by R. 5:8A who must be all attorneys-at-law, and a guardian ad litem as provided for in R. 5:8B, who need not be an attorney-at-law. In sum, the basic role of a law guardian for an incompetent, or a minor is to “zealously advocate the client’s cause” whereas the basic role of a guardian ad litem is to assist the court in its determination of the incompetent’s or minor’s best interest.

In that regard, N.J. Admin Code 13:42-12.2 sets forth certain qualification for an individual to be considered a licensed expert to perform custody/parenting time evaluations. Specifically, the professional must have the requisite amount of education, training and/or supervision in all of the following categories:

1. Child growth and development;
2. Psychological testing;
3. Parent-child bonding;
4. Scope of parenting;
5. Adult development and psychopathology;
6. Family functioning;
7. Child and family development;
8. Child and family psychopathology;
9. The impact of divorce or family dissolution on children; and
10. The impact of age, gender, race, ethnicity, national origin, language, culture, religion, sexual orientation/identity, disability and socioeconomic status on custody/parenting time evaluations.

Unless the attorney holds a dual degree, it is likely that an attorney GAL does not meet these qualifications. Thus, attorneys must take especial care that their conduct does not fall outside of the scope of the rule and wander into the territory of a custody evaluator.

Of note is the emphasis that “[a] court-appointed guardian ad litem‘s services are to the court,” not the parties. In re M.R., 135 N.J. 155, 173 (1994) (citing official comment to Rules 5:8A and B). A GAL would have no perceived bias in favor of one parent’s position because the GAL’s role is to act on behalf of the court and present the best interests of the children. Ibid. Yet, if a GAL becomes involved in settlement negotiations and begins to render recommendations to the parties, how can the GAL maintain the exclusive role permitted pursuant to court rule: a fact finding investigation to the court? Yes, in some cases a GAL exceeding his or her role may be helpful and welcomed. But what about the cases where it is not?

Attorneys should remain wary of a court abdicating its authority to the GAL, as the GAL’s report and recommendations may never serve as a substitute for the court’s exercise of parens patriae. Consequently, a trial judge is never bound to accept a GAL’s recommendations and must never “cede … responsibility and authority” or “abdicate [the] decision-making role to an expert.” P.T. v. M.S., 325 N.J. Super. 193, 216 (App. Div. 1999). Therefore, “the posture of any evidentiary hearing may not … be limited solely to the GAL’s testimony and evidence.” Milne, supra, 428 N.J. Super. at 202.

This is where cross-examination of a GAL becomes an indispensable litigation tool for any attorney challenging a GAL’s role or recommendation. Deposition or cross-examination of a GAL should be routinely performed, just as it would be for a custody or other expert in the case.

In summary, a GAL is a unique and distinctive appointment afforded by our Court Rules that can accomplish a lot of good in a contested custody case; it can provide the court with factual knowledge that it otherwise would have no way to neutrally procure on its own; meet with children such that the child need not meet with the court directly; speak with family members, the child’s treating professionals and teachers; and, generally play a material investigative role in a case. However, attorneys should remain keenly vigilant so that the GAL does not exceed the appointment, absent authority vested by consent of the parties. The GAL may not become the substitute for the court, and questioning the GAL’s findings via cross-examination or depositions may become critical to ensure adherence to the Court Rules. The GAL should not be the only witness. Even if the parties cannot afford to also retain an expert, the party or his/her witnesses can and should testify regarding facts that bolster or discredit a GAL’s findings, depending on whether the party agrees or must oppose those findings. Finally, attorneys should vigorously advocate for the GAL to possess the requisite experience and background that conforms to the parameters of their appointment.

In so doing, attorneys should pay mind to the order of appointment, first and foremost. Oftentimes, a GAL may exceed scope, not because they are overzealous or intend to overtake the case, but rather because a court may have vested the GAL with excess authority, such as a mandate to prepare parenting plans, or binding the parties to the GAL’s recommendations. Other times, the court creates a team approach where the GAL, together with other appointed professionals, are vested with authority to prepare and facilitate such plans. If clients want to reclaim any aspect of the case from these professionals, then perhaps attorneys must start challenging orders of appointment that exceed the Court Rule.

Finally, it must be said that attorneys should support their colleagues’ appointments, applaud a job well done, and advocate for ongoing GAL appointments in cases where it can help. However, let us not forget to implement a check-and-balance approach when necessary, as our first commitment is to our clients and ensuring their ongoing success in all cases.

Reprinted with permission from the January 14, 2021 issue of the New Jersey Law Journal© 2022 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.