If your family is involved in the court system within matters such as divorce, paternity, post-divorce matters, temporary custody by extended family members, or other matters involving co-parenting and parenting plan issues, your child(ren) may benefit from the appointment of a guardian ad litem (GAL). Florida statutes provides that “in an action for dissolution of marriage or for the creation, approval, or modification of a parenting plan, if the court finds it is in the best interest of the child, the court may appoint a guardian ad item to act as next friend of the child, investigator or evaluator, not as attorney or advocate. The court in its discretion may also appoint legal counsel for a child to act as attorney or advocate; however, the guardian and the legal counsel shall not be the same person. In such actions which involve an allegation of child abuse, abandonment, or neglect as defined in s. 39.01, which allegation is verified and determined by the court to be well-founded, the court shall appoint a guardian ad litem for the child. The guardian ad litem shall be a party to any judicial proceeding from the date of the appointment until the date of discharge.” F.S. 61.401. The GAL is considered “the eyes and ears of the court”.
In the context of a family law case (as opposed to a dependency matter), the GAL is most often a paid professional and in many circuits in Florida, they are licensed attorney’s who have also received training as a GAL. The GAL can be appointed by motion filed by one of the parties or upon the court’s own motion. An order is then entered which sets forth the powers and authority of the GAL as well as the specific issues that the GAL is being requested to investigate. The specific powers and authority granted to the GALs under Chapter 61 Florida states is located at 61.403. Because the statutory list also states “including, but limited to”, the court will often add to those powers and authority if it will assist the GAL under the specific facts of the case.
Pursuant to 61.404 Florida Statutes, “the guardian ad litem shall maintain as confidential all information and documents received from any source described in s. 61.403(2) and may not disclose such information or documents except, in the guardian ad litem’s discretion, in a report to the court, served upon both parties to the action and their counsel or as directed by the court.” Therefore, other than the information disclosed within the report of the GAL or provided by testimony under oath, should not be disclosed to the parties or their attorneys, or other collateral witnesses.
Currently, under the evidence code and the case law interpreting the statutory law, most of the testimony and written reporting of the GAL appointed in a family matter, is inadmissible hearsay. Therefore, the court order appointing the guardian should also include a finding that the parties have waived the evidentiary hearsay objection. Otherwise, the time, money, and relationship that is developed between the child(ren) and the GAL, is wasted and without benefit.
Linda I. Braithwaite, is a licensed attorney who has been trained and appointed as a guardian at litem in several circuits in the state of Florida, which includes Pasco, Pinellas, Hernando, Hillsborough and Citrus counties. Find out if she is available for appointment as a guardian ad litem in your case by calling 727-372-0465.