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What’s the Role of a Guardian Ad Litem in Custody Disputes?

It’s a fact of life that not all marriages become happily ever after. When a marriage doesn’t work, many couples can still come to an agreement on the issues of their divorce such as child custody. When they cannot negotiate a settlement, the former couple may end up in divorce court.

The district court judge presiding over a divorce trial has the discretion to appoint a guardian ad litem to help the judge determine how to rule in custody disputes. While a judge can make the appointment whenever they think it is useful, but the judge will almost always appoint one in cases involving a termination of parental rights or child neglect or abuse.

The guardian ad litem (GAL) presents to the court what they believe to be in the best interests of the child based on their factfinding.

What Can a Guardian Ad Litem Do and Not Do?

Until recently, a guardian ad litem did not have to be an attorney. That changed with HB 133, enacted in 2017. Under the new law, a GAL appointed by the court must be a practicing attorney. A change also included a new section that a separate attorney for the child can also be appointed to represent the child’s legal interests. The same attorney cannot fill both roles.

Updated Iowa Code § 598.12 allows for a GAL to do the following:

  • Conduct an initial in-person interview with the child, if the child’s age is appropriate for an interview
  • Observe a child with each of their parents when the child is too young for an interview
  • Maintain regular contact with the child
  • Interview each parent, guardian, or other person having custody of the child
  • Visit the home of the child and any prospective home of the child
  • Interview people who provide services to the child, including medical, mental health, educational, and social services.
  • Obtain any other facts or information related to the matter
  • Attend depositions, hearings, or trials related to the matter
  • Cause witnesses to appear, offer evidence, and question witnesses
  • File motions and make objections

A GAL cannot testify, serve as a witness, or file a written report in the matter. Older children may express their wants and concerns when being interviewed by the GAL, but the GAL does not advocate for what the child wants. The guardian ad litem advocates for the child’s best interest, which is a distinct difference.

Can a GAL Be Replaced?

Ideally, the GAL will remain unbiased. If a parent believes that the GAL is not living up to that ideal, the parent should let their attorney know. Any motion to the court for a new GAL must be accompanied by evidence of the bias.

How Is a GAL Paid?

The parents of the child are generally responsible for paying the GAL. The guardian ad litem will submit their fees to the judge. The judge will then determine how to divide the amount due between the two parents. If the court determines that the responsible parties are indigent, then the county will pay the GAL.

Be Backed by Experience in Custody Conflict

No one looks forward to a stranger evaluating their parenting and offering their views to a judge who will ultimately decide custody. If you and your spouse are headed to a divorce trial, it is critical for you to have a seasoned lawyer from Hope Law Firm. We can advocate for what you know to be best for your children. A clear, concise, and convincing argument can potentially help a judge make a custody determination without the outside input of a GAL.

Learn more about how we can help you navigate your divorce with an initial consultation. A contested divorce, uncontested divorce, and collaborative divorce have their own specific steps and challenges. We have the knowledge to advise you through it all. Your first consultation is always free and can be scheduled online or by calling (515) 305-2772.