Anyone who has been a party in a child custody case where the child’s guardian ad litem is against them must have had the impression that the guardian ad litem’s power is equal to that of the judge. Fortunately, that is not even remotely true. Here are five things that a guardian ad litem cannot do in a child custody case:
1.) Violate the attorney rules of ethics – a guardian ad litem is an attorney and must follow all of the ethical rules that bind attorneys. For example, they may not communicate directly to a party who is represented by counsel or knowingly offer false evidence.
2.) Offer hearsay evidence – the appellate courts in Virginia are clear on the fact that a guardian ad litem cannot offer hearsay evidence. Any statements made by 3rd parties such as teachers, counselors, or interested witnesses must come from those people in court. Their statements cannot be offered in a written report or by the guardian ad litem in their oral report to the court.
3.) Serve as a witness – a guardian ad litem may not be sworn in as a witness. This is strictly prohibited by the Rules of the Virginia Supreme Court governing the performance of guardians ad litem for children, as well as case law handed down by the appellate courts in Virginia.
4.) Violate the rules of evidence – a guardian ad litem is an attorney, and as such must conduct themselves in court subject to the same evidentiary rules that bind every attorney. They must authenticate documents, abstain from offering hearsay evidence (as stated above), and they cannot use leading questions when examining a witness unless proper to do so.
5.) Even be appointed in the first place – contrary to popular belief and practice, the appointment of a guardian ad litem is not automatic. In cases where both parties are represented by counsel, the judge must first determine that the minor child’s interests are otherwise not being represented before a guardian ad litem is even appointed.
As experienced family law attorneys, we see these rules violated weekly. Without the knowledge and experience that comes with a seasoned legal advocate, your rights to your child can be taken due to the improper actions of a guardian ad litem. Don’t allow this to happen to you.