What Is a Guardian ad Litem?

In some highly contested child custody cases, the court may appoint a Guardian ad Litem (“GAL”) to assist the court in determining what arrangement is in the child’s best interest.

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Many parents mistakenly believe that the Guardian ad Litem represents the mother, the father, or even the child in the same way that an attorney represents a client.

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That is not the Guardian ad Litem’s role.

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The Guardian ad Litem is appointed to investigate the facts and make recommendations regarding the child’s best interests. The Guardian ad Litem is not an advocate for either parent and is not a party to the lawsuit. See Tex. Fam. Code §§ 107.001 and 107.002.

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When Will the Court Appoint a Guardian ad Litem?

Not every custody dispute requires a Guardian ad Litem.

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Appointments most commonly occur in highly contested cases involving allegations of abuse, neglect, family violence, substance abuse, mental health concerns, relocation, parental alienation, or other circumstances in which the court believes an independent investigation would assist in determining the child’s best interest.

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Because a Guardian ad Litem increases both the complexity and cost of litigation, judges generally reserve these appointments for cases in which the additional investigation is likely to assist the court.

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The Guardian ad Litem Has a Duty to Act in the Child’s Best Interest

Unlike an attorney representing a parent, the Guardian ad Litem owes duties to the court and to the child—not to either litigant.

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Under Texas Family Code § 107.002, the Guardian ad Litem conducts an independent investigation, interviews the parties, interviews the child when appropriate, interviews individuals with significant knowledge regarding the child’s history, and reviews relevant records, including medical, psychological, and school records. Throughout the investigation, the Guardian ad Litem’s responsibility is to evaluate what arrangement serves the best interest of the child, even if that recommendation is contrary to the wishes of one or both parents.

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The Scope of the Guardian ad Litem’s Investigation

The investigation performed by a Guardian ad Litem is often extensive.

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Depending upon the issues presented in the case, the Guardian ad Litem may interview parents, children, teachers, counselors, physicians, daycare providers, relatives, therapists, law enforcement officers, and other individuals with relevant information. The Guardian ad Litem may review photographs, text messages, school records, medical records, CPS records, police reports, counseling records, and other documents relating to the child’s welfare.

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The court may also assign specific duties beyond those required by statute depending upon the unique issues presented in the case.

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Every investigation differs because every family presents different factual circumstances.

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The Guardian ad Litem Must Explain the Basis for the Recommendations

A Guardian ad Litem does not simply tell the judge which parent should prevail.

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Texas law requires considerably more.

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Under Texas Family Code § 107.002(e), the Guardian ad Litem may testify and submit a report concerning recommendations affecting the child’s best interests, and those recommendations must include the basis for the Guardian ad Litem’s opinions.

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In other words, the recommendation should be supported by facts developed during the investigation rather than unsupported conclusions or personal beliefs.

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The court expects the recommendations to be grounded in evidence gathered during the appointment.

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The Guardian ad Litem Must Provide a Written Report

In contested cases, the Guardian ad Litem is generally required to provide a written report before trial.

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Under Texas Family Code § 107.002(g), the report must be provided to the attorneys as directed by the court, but no later than the earlier of the deadline established in the scheduling order or ten days before trial.

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Receiving the report before trial allows the parties to review the investigation, evaluate the recommendations, prepare witnesses, and determine whether additional discovery is necessary.

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The Guardian ad Litem Does Not Decide Custody

Parents sometimes believe that once a Guardian ad Litem recommends one parent, the case is effectively over.

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That is not the law.

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The Guardian ad Litem’s recommendations may carry substantial weight because they are based upon an independent investigation, but they are not binding on the trial court.

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The judge remains the ultimate decision-maker regarding conservatorship, possession, access, and the right to designate the child’s primary residence after considering all of the admissible evidence presented at trial.

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Recent Texas appellate decisions continue to recognize that the trial court—not the Guardian ad Litem—is responsible for determining the child’s best interests based upon the entire record before the court.

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It May Be Appropriate to Depose the Guardian ad Litem

Although not every case requires additional discovery from the Guardian ad Litem, there are circumstances in which taking the Guardian ad Litem’s deposition is appropriate.

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For example, counsel may wish to explore the factual basis of the recommendations, determine what witnesses were interviewed, identify documents reviewed, examine inconsistencies within the report, clarify factual assumptions, or understand the methodology used during the investigation.

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Likewise, if significant new information becomes available after the report is completed, a deposition may provide an opportunity to determine whether that information affects the Guardian ad Litem’s conclusions.

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Whether a deposition is appropriate depends upon the complexity of the case, the contents of the report, and the issues expected to be presented at trial.

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The Guardian ad Litem Can Be Cross-Examined

Texas law expressly contemplates that the Guardian ad Litem may testify.

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Under Texas Family Code § 107.002(f), in a nonjury trial a party may call the Guardian ad Litem as a witness for cross-examination regarding the report even if neither party has listed the Guardian ad Litem as a witness.

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Like every other witness, the Guardian ad Litem’s opinions, methodology, factual assumptions, and recommendations may be examined through cross-examination.

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Fergus & Tomanka Represents Parents in Cases Involving Guardian ad Litems

A Guardian ad Litem appointment often becomes one of the most important aspects of a contested custody case. Understanding the statutory duties of the Guardian ad Litem, preparing for interviews, reviewing the written report, and determining whether additional discovery or deposition testimony is appropriate can significantly affect the presentation of the case at trial.

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At Fergus & Tomanka, we regularly represent parents throughout Central Texas in complex custody litigation involving Guardian ad Litems, custody evaluations, amicus attorneys, psychological evaluations, family violence, relocation disputes, and high-conflict conservatorship cases. We carefully review every Guardian ad Litem report, prepare our clients for the investigative process, and, when appropriate, challenge unsupported recommendations through discovery and cross-examination.