Guardian ad litem serves important role

·4 min read

May 23—In criminal court, a defendant that can't afford an attorney is appointed a public defender. That also happens in Family Court, where attorneys can be appointed to represent parties in divorce, custody and child abuse cases.

In abuse cases, children are also appointed attorneys, called guardians ad litem, who don't represent the child's wishes. Rather, the guardian ad litem represents what he or she thinks is the child's best interest.

The guardians ad litem, who are paid by the case, are an important part of the Family Court system, officials said.

"When I call a case, I find out who the guardian ad litem is, and I call on them first," said Judge Joe Castlen, a retired Circuit Judge who is handling Daviess Family Court cases with retired Circuit Judge Tom Castlen and District Judge David Payne. Those judges are doing Family cases on a temporary basis, after Family Judge Julie Hawes Gordon was removed from the bench by the Judicial Conduct Commission, over allegations of professional misconduct.

"I use them every time I get a new case," Castlen said of the GALs. "That's the first person I appoint."

Nathan Goins, Family Court liaison for the Administrative Office of the Court's Department of Family and Juvenile Services, said guardians ad litem are used in child dependency, neglect and abuse (DNA) cases, divorces, custody and "any Family Court case where you have a child involved."

When a dependency, neglect and abuse petition is filed, "the child always gets a guardian ad litem," Goins said. In a hearing to terminate a parent's rights, a GAL represents the child's interest.

While attorneys for the parents argue for their client's "side," the GAL "argues for what is in the child's best interest," Goins said. What the GAL regards as the child's best interest can be opposite of what the child wants.

"The GAL operates under the best interest representation model," Goins said.

When a GAL is appointed in a DNA case, they are on that case until its conclusion. The state pays GALs $500 for each case they are assigned in counties with Family Courts.

"The attorneys, unless they have to withdraw, are on for the entirety, until the case ends," Goins said.

There is a system for appointing GALs to dependency, neglect and abuse cases. In early 2020, the Administrative Office of the Courts issued statewide rules regarding GAL appointments to abuse cases, requiring Family Courts to keep lists of attorneys in good standing who want to participate.

"You just go down the list" to make appointments, Goins said.

"The list should be maintained by the (Circuit) clerk," Castlen said. "We get the list from the clerk, and we know who's next (to be appointed), and we go in order."

Prior to 2020, "the way we appointed did vary across the state" in DNA cases, Goins said. The goal of creating standards for the appointment process was "to get a little uniformity and ease the minds of people thinking (some) attorneys were getting beneficial treatment."

Guardians ad litem are different from Court Appointed Special Advocates.

"CASA is independent and operates kind of as investigators for the court," Goins said. "They make recommendations based on the best interest standards, but they don't represent anybody."

A GAL can make more than $500 in abuse cases in some circumstance, such as when an appeal is filed or if a new abuse allegation is found during an investigation, Goins said.

There is not a maximum number of cases a GAL can carry, but many of the cases don't require much beyond the GAL keeping track of the child and attending annual case reviews, Goins said.

An attorney can be removed from the appointment list if he or she doesn't comply with rules and standards. For example, a GAL who didn't prepare for hearings, meet with the child and prepare the child for court could be removed, Goins said. Unethical behavior would also be cause for removal.

But the system "allows sanctions, and the sanctions are up to removal (from) cases," Goins said. "It's not easy to get attorneys who will work on these cases," because of the $500 maximum fee and the possibility the GAL will have to make numerous court appearances.

"It's hard for me to imagine judges frivolously kicking people off the list."

A guardian ad litem can make more than $500 in certain divorce or child custody cases, such as when there are special issues to consider or there is a lot of fighting among the parties.

"There's not a cap on the fees in those cases," Goins said. The GAL will keep track of their fees in divorce and custody cases, "and the judge will order the parties to pay them," Goins said. But the amount has to be "reasonable," up to $1,000.

There can also be an appointment list for divorce and custody cases, but there are no specific rules regarding those appointments, Goins said.

James Mayse, 270-691-7303, jmayse@messenger-inquirer.com, Twitter: @JamesMayse