During the 2013 Maine legislative session, citizens, elected officials, and professionals passionately expressed their beliefs concerning the legitimacy and efficacy of guardian ad litem [GAL] appointments in private child custody cases. In many respects, this policy discussion mirrored national trends in the scholarly and social science literature concerning allegations of the overuse or capacious role of a GAL. Establishing the proper legal and scientific contours within which GALs may serve the best interests of children and simultaneously provide constructive investigative and evidence-informed recommendations to judicial fact finding remains a proper concern for proponents and critics alike. The challenge, in this era of emotion and visceral responses to even the most sincere disputes, is how to engage in meaningful policy, practice, and legislative changes which effectively and responsibly serve the complex needs of modern family systems. The specific or precise role of a GAL differs from state to state but the general definition is a “person, not necessarily a lawyer, who in a litigated matter stands in the place of a party deemed legally incompetent” with the specific authority to act within a peculiar combination of a court’s delegation under the applicable law of that jurisdiction. For the most part, this role is a gyrating function of advocate, educator, evaluator, mediator, investigator, expert witness, social science consumer, and recommender. As one scholar aptly summarized, GALs perform widely diverse and concurrent tasks when assisting the court, and when “resolving custody disputes, visitation schedules, temporary placements, or other matters, legal and ethical issue arise in everyday GAL practices that have important implications for all parties involved." The need for judges to delegate flexible and diverse authority to GALs occurs because: (1) a family court judge cannot ethically perform certain functions in the American judicial system such as home visits and ex parte communications and (2) each family system presents unique social and environmental histories. Both these factors require an archeological approach to digging out some semblance of factual reality, which, if done properly, connects to recommended interventions. From those relatively simple truths of civics and human nature, a key point is inadvertently—or conveniently—missed: a trial judge, sitting on the bench each day with dozens of files containing little more than vague identities and undulating allegations, may only presume the most basic biopsychological context for child custody conflict.
Dana E. Prescott,
Inconvenient Truths: Facts and Frictions in Defense of Guardians Ad Litem for Children,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol67/iss1/4