Divorces that involve minor children and the custody of those children can be stressful and emotionally difficult. That stress can be magnified when the parents cannot come to an agreement about custody. While many cases can be resolved with the involvement of attorneys and/or mediators, sometimes there isn’t enough compromise to achieve that. In those cases, the court may appoint a guardian ad litem to step in. Here’s what to understand and expect if that happens in your child custody case.

What Is a Guardian Ad Litem?

A guardian ad litem does not work for a law firm, so they don’t represent either of the parents, meaning they’re not invested in the side of one parent or the other. Instead, the guardian ad litem is appointed by the court to be a neutral party whose focus is on the best interests of the child. They act as a third party that has one goal, and that’s to determine the best custody situation for the child. While they may ask the child’s opinion of the matter, they’re trained to look at the full scenario and not just what the child requests.

There are usually fees involved for a guardian ad litem, and these fees are paid by the parents unless they’re proven indigent.

How Does a Guardian Ad Litem Assess Custody Cases?

A guardian ad litem has several approaches to determining the best interests of the child in a child custody/divorce case. Usually, they’ll start by interviewing the child and anyone who’s involved in the care of the child, including parents and other relatives, childcare providers, teachers, etc. They’ll also examine medical records and, if necessary, speak to medical professionals who have examined the child. 

Taking the information they’ve gotten from these interviews and document reviews, they then produce a fact-based overview of what they’ve learned, along with recommendations for settling the custody issues. In some cases, the guardian ad litem will discuss the recommendations with the child and ask for their opinion about it. Either way, the report will be submitted to the court. The judge will then review the report as well as testimony from both parents or their attorneys before coming to a final decision.

In general, the process looks like this: 

  • The guardian ad litem meets with and interviews the family and child(ren).
  • Then they interview nonfamily members who have routine interaction with the child, including teachers and daycare providers.
  • They may talk with doctors or therapists who have treated the child;
  • Once interviews are complete, the guardian ad litem may ask for an investigation of the child’s home life and/or a professional psychological evaluation for each person in the family. 
  • Once all interviews and investigations are complete, they’ll file the motions for custody or child support.
  • During this time, the guardian ad litem will also facilitate meetings between the judge and children as well as attend any trials or court hearings.
  • Finally, they’ll make formal custody recommendations to the court.

What Criteria Do Guardian Ad Litems Use When Recommending Custody?

First and foremost, they’re looking at what is most likely to be in the best interests of the child. The Texas Supreme Court defined that as:

  1. the desires of the child
  2. the emotional and physical needs of the child now and in the future
  3. the emotional and physical danger to the child now and in the future
  4. the parenting abilities of the individuals seeking custody
  5. the programs available to assist those individuals in promoting the best interest of the child
  6. the plans for the child by these individuals or by the agency seeking custody
  7. the stability of the home or proposed placement
  8. the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one
  9. any excuse for the acts or omissions of the parent

In some cases, the answers may be very clear, such as in a case where one parent has been physically or emotionally abusing the child, abuse which is documented by the child or other witnesses or corroborated through medical records. In other cases, it’s not as clear-cut and could take the guardian ad litem time to investigate thoroughly and come to a conclusion. 

Who Can Be a Guardian Ad Litem?

It’s common for people to think only attorneys can be guardian ad litems, since this is a legal situation involving the courts. However, guardian ad litems don’t have to be attorneys, although they can be, given their knowledge and experience with Texas divorce and child custody laws. Often guardian ad litems are people who have degrees and experience in psychology. 

Texas requires the following for guardian ad litem applicants:

Must be at least 21 years old

Graduated high school or passed the GED

Completed an online Texas Guardianship training

Have two years of relevant work experience, have a bachelor’s degree in a relevant field (nursing, social work, psychology), or complete approved courses or training.

Pass a Commission-approved exam

Pay the certification fee and pass a background exam

What if I Want a Divorce, but Child Custody May Be a Problem?

Call us as soon as possible at 817-813-8513 for a case evaluation. Divorce is one of the most stressful of life situations. Having child custody issues involved makes it even more devastating. We’re here to help you understand your options and to advocate on your behalf. If a guardian ad litem is appointed to your case, we’ll help you work through the ad litem process as smoothly and calmly as possible.