When parents fight over the custody of a minor child, they easily can catch the child in the crossfire of their dispute. Emotional turmoil and upheaval is a given. Worse, either parent, or both of them, may pursue objectives which do not further the child’s best interests. That unfortunate scenario occurs especially in cases where parties who loath each other seek retaliation, rather than placing their child’s needs first. In such instances, a guardian ad litem may be needed to protect the child.

Georgia law grants a trial court the power to appoint a guardian ad litem for a minor child at the court’s discretion.(1) A court almost certainly will exercise that discretion where a child without a natural guardian (i.e., mother and father) or other legal guardian brings or defends an action.(2) In custody disputes between parents, courts historically have focused on whether the child’s interests seemed adverse to that of either party. Prior statutory law expressly provided for the appointment of a guardian ad litem in those situations; and even with the repeal of that particular statute, judicial discretion should still heavily factor adversity of interests when determining the need for a guardian ad litem.(3) As one appellate panel has stated, “[t]he responsibility of the court in determining whether or not to appoint a guardian ad litem for the child is to consider indications of potential danger to such child and whether or not the interests of the child are likely to be adequately protected by its natural guardian.”(4)

When appointed, a guardian ad litem functions as a fiduciary for the minor child who “shall represent the best interests of the child … [and] holds a position of trust with respect to the minor child at issue and must exercise due diligence in the performance of his/her duties.”(5) The guardian’s role “is to protect the interests of the child and to investigate and present evidence to the court on the child's behalf, a role which the court cannot properly fulfill.”(6)

In custody disputes, an appointed guardian ad litem usually will make a custodial recommendation after investigating the issues. The guardian’s investigation typically includes: meeting with the parties and the child; inspecting the parties’ residences; reviewing relevant pleadings and other documents bearing on the custody issues; participating in depositions and court hearings; and sometimes requesting and subsequently reviewing psychological or physical evaluations of the child and/or the parents.(7) The guardian’s ultimate recommendation always should promote the child’s best interests and only the child’s best interests.(8)

Although a guardian ad litem’s custodial recommendation likely will align with one parent’s position, the guardian should attempt to present the court with all relevant facts and not just the facts supporting the guardian’s and parent’s positions. This is so because a guardian ad litem functions as an officer of the court charged with “[assisting] the court and the parties in reaching a decision regarding child custody, visitation and child-related issues.”(9)

If evidence shows that a guardian ad litem has failed to properly perform his/her role, one or both of the parents may request the guardian’s removal. A judge who appointed a guardian always retains the discretion to remove the guardian, limit the appointment of the guardian, or appoint a successor guardian.(10)

(1) Luther v. Luther, 289 Ga. App. 428, 432 (2), 657 S.E.2d 574 (2008); Dee v. Sweet, 224 Ga. App. 285, 287(1), 480 S.E.2d 316 (1997).

(2) O.C.G.A. § 9-11-17(c); O.C.G.A. § 29-2-1(1); O.C.G.A. § 29-2-3(b).

(3) Former O.C.G.A. § 29-4-7. See also Dee, supra, 224 Ga. App. at 287-288.

(4) Padilla v. Melendez, 228 Ga. App. 460, 462, 491 S.E.2d 905 (1997). See also In re Formal Advisory Opinion No. 16-2, S17U0553, *4 (Ga., December 11, 2017).

(5) U.S.C.R. 24.9(3).

(6) Padilla, supra, 228 Ga. App. at 462.

(7) See generally U.S.C.R. 24.9(4).

(8) Padilla, supra, 228 Ga. App. at 462; and In re Formal Advisory Opinion No. 16-2, supra.

(9) U.S.C.R. 24.9(3).

(10) O.C.G.A. § 29-9-2(c).

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