What is a GAL and what do they do?

Folks generally know that everyone involved in a lawsuit has their own lawyer to represent their interests. What many people don’t realize is that the Court may, in these circumstances, appoint a third lawyer to get involved. This third lawyer is called a Guardian Ad Litem, or GAL, and is generally appointed when the Court is unsure whether the other litigants can adequately represent the interests of someone whose rights are going to be so impacted by the outcome of a lawsuit that they need to have a say.

This might be:

• A child who is alleged to be abused or neglected, or who is up for adoption
• An elderly person who may or may not be mentally competent to manage their own affairs

Most often, a GAL is appointed for a child. When that happens, Tennessee Supreme Court Rule 40 says that the Guardian is supposed to, “advocate for the best interests of a child and to ensure that the child's concerns and preferences are effectively advocated.”

In determining what is in the child’s best interest, the GAL is charged with investigating the following:

• the child's basic physical needs, such as safety, shelter, food, clothing, and medical care;
• the child's emotional needs, such as nurturance, trust, affection, security, achievement, and encouragement;
• the child's need for family affiliation;
• the child's social needs;
• the child's educational needs;
• the child's vulnerability and dependence upon others;
• the physical, psychological, emotional, mental, and developmental effects of maltreatment upon the child;
• degree of risk;
• the child's need for stability of placement;
• the child's age and developmental level, including his or her sense of time;
• the general preference of a child to live with known people, to continue normal activities, and to avoid moving;
• whether relatives, friends, neighbors, or other people known to the child are appropriate and available as placement resources;
• the love, affection and emotional ties existing between the child and the potential or proposed or competing caregivers;
• the importance of continuity in the child's life;
• the home, school and community record of the child;
• the preferences of the child;
• the willingness and ability of the proposed or potential caretakers to facilitate and encourage close and continuing relationships between the child and other persons in the child's life with whom the child has or desires to have a positive relationship, including siblings; and
• in the case of visitation or custody disputes between parents, the list of factors set forth in Tenn. Code Ann. § 36-6-106.

To investigate these considerations, the GAL is supposed to treat the child as their client, complete with advocating for the child just like any other lawyer would and protecting that child’s secrets. GALs are also tasked with communicating with the child about upcoming court hearings, dealing with emergencies and significant events in the litigation and answering the child’s questions.

Rule 40 imposes specific duties on GALs, when representing a child:

• To conduct an independent investigation of the child’s circumstances.
• Get medical, school and other private information related to the child.
• Review court files of the child and siblings and obtain all pleadings.
• Review any Department of Children’s Services records, such as TFACTS.
• Discuss the case with other involved lawyers.
• Interview the parents and child, with permission.
• Review parental records, such as criminal, medical and psychiatric records, as law permits.
• Interview other people involved with the child, such as teachers, coaches and neighbors.
• Explain to the child the subject matter of the lawsuit, the child’s rights, the court process, the Guardian’s role and responsibilities, what to expect at each hearing and the significance of any orders.
• Assess the child’s needs and any available resources and make sure the child gets to them.
• Prepare the child to testify as necessary.
• Advocate for the child’s best interest in court and other forums.
• Participate in depositions, mediation, etc., and file related pleadings.
• Monitor compliance with Orders.
• File any appropriate appeals.

Sometimes what the child wants and what the GAL believes to be in the child’s best interest are different. When this happens, the GAL is to discuss the different options with the child, and if the child persists in that position, the GAL should petition the Court for the appointment of a fourth attorney to advocate for the child’s preference. This attorney is called an Attorney Ad Litem.

GALs have a lot of work to do and are usually intimately familiar with the facts of the case. Therefore, Courts tend to show a lot of deference to the GAL – more than Courts typically show to the lawyers for either parent. Lawyers for the parents must be sure GALs do not use that deference to step over any boundaries. For instance, GALs are not witnesses, and they have to follow the same procedures, the same rules of evidence, and the same rules of civil procedure that any other lawyer follows. Guardians will often attempt to submit a “report and recommendations” to the Court – this is expressly prohibited and should be objected to.

It is important for your lawyer to have a good working relationship with the Guardian Ad Litem if one is appointed. At Held Law Firm, we already get most of the records that GALs are required to obtain as part of our general work-up of your file, and, our advice to you is likely going to be to make their job easier by sharing those records with them. GALs can also be that neutral third party to give perspective on your case before you go in front of a judge.

As always, having an experienced attorney is your best bet to using the services of a Guardian Ad Litem to help your child. Give us a call at (865) 637-6550, and we’ll be happy to help.