In Washington family law cases, a Guardian ad Litem (often abbreviated as a ‘GAL’) may be appointed by the court to represent and protect the best interests of the parties’ children. This could be during a divorce, a parenting plan modification, and other family law proceedings. Despite the varying contexts that could lead to the appointment of a GAL, the common theme amongst these cases is that they are often high conflict custody cases, and a neutral third-party is needed to assist the judge in working through the problems presented.

Pursuant to an appointment, GALs are tasked with investigating the family in question, and provide recommendations to the Court on what court-ordered parenting provisions are in the children’s best interest—e.g., is a week-on, week-off schedule optimal? should one parent have sole decision-making authority on certain topics? at what location should the children be exchanged, the home or a neutral location?

Although the GAL has a lot of flexibility in how they investigate the family and conduct their work, there are rules that govern their appointment. “These measures are intended to assure that the welfare of the children whose parents are involved in litigation concerning them remains the focus of any investigation and report, and that acrimony and accusations made by the parties are not taken up by an investigator whose only job is to report to the court after an impartial review of the parties and issues.”[1] Some rules are general and broad. For instance, “[t]he guardian ad litem shall not advocate on behalf of or advise any party so as to create in the mind of a reasonable person the appearance of representing that party as an attorney.”[2] They are to maintain independence and objectivity in going about their business. Likewise, they must uphold the ethical principles of the rules and are subject to discipline if they fail to act ethically.

There are also rules that cabin the GALs investigation. The GAL cannot provide or require services beyond the scope of the court’s instruction. Sometimes GALs may want mental health evaluations performed on each party; however, by rule, the GAL cannot require such an evaluation “except as authorized by statute or court ordered issued following notice and opportunity to be heard.”[3] Another prohibition is that GALs may not have “ex parte” communications with either the judge or commissioner. (“Ex parte communications” are those made to the judge or commissioner without including the other parties in the communication.) Grievance procedures are available to any party who feels the GAL has acted in contravention of their duties or the rules.[4]

One common issue that can arise is when one attorney has ex parte communications with the GAL to discuss the case. Technically, unless the Order Appointing Guardian ad Litem specifically prohibits ex parte communication, this is not prohibited. This question was directly addressed by the Washington State Bar in Advisory Opinion 1397. You can nonetheless file a motion to try and remove a GAL if you feel the GAL has acted in impermissible ways. The trial court has wide discretion in whether it should remove a GAL.[5]

In the case of In re Marriage of Bobbitt, the father argued that the trial court should have removed the GAL and appointed a new one for various reasons. The Court of Appeals began its decision by noting concerns related to GALs and the authority they hold:

It has long been a concern of the legislature that GALs, who are appointed in family law matters to investigate and report to superior courts about the best interests of the children, do their important work fairly and impartially. Following public outcry about perceived unfair and improper practices involving GALs, the legislature adopted RCW 26.12.175 to govern the interactions of courts and GALs and our Supreme Court adopted the GALR. These measures are intended to assure that the welfare of the children whose parents are involved in litigation concerning them remains the focus of any investigation and report, and that acrimony and accusations made by the parties are not taken up by an investigator whose only job is to report to the court after an impartial review of the parties and issues.[6]

Although the appellate court in Bobbitt found that the GAL failed to conduct a proper investigation, the trial court did not err in refusing to remove the GAL. This is because the trial court ultimately did not rely solely on the GAL: “Here, despite the deficient GAL performance, the totality of the record supports the conclusion that the trial judge independently evaluated the evidence.”[7] As another case explained, “[j]udges understand that the GAL presents one source of information among many, that credibility is the province of the judge, and can without difficulty separate and differentiate the evidence they hear.”[8]

If you are wondering about whether a GAL would be a good fit for your case, contact a family law attorney at Lasher.

[1] In re Marriage of Bobbitt, 144 P.3d 306, 314 (Wash. Ct. App. 2006).

[2] GALR 2(a).

[3] GALR 2(h).

[4] GALR 7.

[5] Bobbitt, 144 P.3d at 313.

[6] Id. at 314.

[7] Id. at316.

[8] In re Guardianship of Stamm v. Crowley, 121 Wn. App. 830 (2004).