When divorcing parents in New Hampshire disagree about custody or visitation, the court has the power to appoint a guardian ad litem (GAL) to represent the interests of the children and report to the court as to what arrangements would serve them best. The same procedure applies when unmarried parents appear in court with similar disputes. This article answers some common questions about guardians ad litem. (For more information on New Hampshire family law, see our New Hampshire Divorce and Family Law page; you can find our articles on custody and visitation in our Child Custody area.)
Who can serve as a guardian ad litem?
In New Hampshire, GALs must be approved by the courts and complete a special training program. Usually they are attorneys, but sometimes they are psychologists, social workers, or others.
When is a GAL appointed?
In a divorce or similar case, a judge or master may appoint a GAL whenever an issue arises that affects a child's welfare or custody. In a post-divorce custodial dispute, the court may appoint a GAL to find out whether one parent has interfered with the other's visitation or custodial rights or whether there is a strong possibility of harm to the child, either of which might create a basis for a change in custody. GAL appointments are most often made at the time of the temporary hearing.
A GAL's Order of Appointment will identify the issues he or she should investigate, which may be based on specific requests by the parents and their attorneys or on issues identified by the judge or master. GAL investigations may cover questions of legal custody, physical custody, visitation schedules (including arrangements for pickups and drop-offs), parenting skills, bonds between children and parents, abuse of alcohol or drugs, the influence of a new boyfriend or girlfriend, and the like.
While the court may appoint a guardian ad litem upon request of the parties or on its own initiative, either way the parties are required to pay for the GAL's services The court will determine the amount each party must contribute; typically each parent pays half. If one or both of the parents are indigent, their share may be paid from a fund administered by the court.
What does a GAL do?
The guardian ad litem submits a report stating findings and recommendations to the court. To meet this responsibility, a GAL must first conduct an investigation, which may involve not only the child and the family but also others who have contact with them, such as physicians, teachers, and babysitters. GALs have the right to review the child's (and sometimes the parents') medical and counseling records, to review school records, and to interview anyone with an interest in the child's custody, visitation, maintenance, or education. The GAL will typically meet with the child and one parent at a time and visit the home of each parent to observe interactions.
Is the GAL's word final?
While the role of guardian ad litem is valued by the courts, their recommendations are not binding. "Recommendations of the guardian ad litem do not, and should not, carry any greater presumptive weight than the other evidence in the case. The guardian ad litem is appointed to represent the best interests of the child, not to make a conclusive or presumptive determination; that is the province of the court or master." (Richelson v. Richelson, 130 N.H. 137, 143 (1987).) As a practical matter, however, courts often follow the GAL's recommendations. Often, once the parties receive the GAL's report, they try to settle the case along lines suggested in the GAL's report.
