ENGAGING GUARDIAN AD LITEMS IN PARENTING CASES


Ideally, parents would be able to agree upon a parenting schedule for their children.  Parents are best suited to this task because know their own schedules, their children’s schedules, and their children’s personalities better than any attorney, Judge, or a Guardian ad Litem ever can.  If the parents cannot reach an agreement regarding parenting time, then a Judge must ultimately decide what parenting time each parent has with the child.  In making this decision, the Judge is guided by the best interest of the child standard contained in NH RSA 461-A:6(I).  The statute provides that “[i]n determining parental rights and responsibilities, the court shall be guided by the best interests of the child, and shall consider the following factors:
(a)    The relationship of the child with each parent and the ability of each parent to provide the child with nurture, love, affection, and guidance.

(b)   The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.

(c)    The child’s developmental needs and the ability of each parent to meet them, both in the present and in the future.

(d)   The quality of the child’s adjustment to the child’s school and community and the potential effect of any change.

(e)    The ability and disposition of each parent to foster a positive relationship and frequent and continuing physical, written, and telephonic contact with the other parent, including whether contact is likely to result in harm to the child or to a parent.

(f)    The support of each parent for the child’s contact with the other parent as shown by allowing and promoting such contact, including whether contact is likely to result in harm to the child or to a parent.

(g)   The support of each parent for the child’s relationship with the other parent, including whether contact is likely to result in harm to the child or to the parent.

(h)    The relationship of the child with any other person who may significantly affect the child.

(i)     The ability of the parents to communicate, cooperate with each other, and make joint decisions concerning the children, including whether contact is likely to result in harm to the child or to a parent.

(j)     Any evidence of abuse, as defined in RSA 173-B:1, I or RSA 169-C:3, II, and the impact of the abuse on the child and on the relationship between the child and the abusing parent.

(k)   If a parent is incarcerated, the reason for and the length of the incarceration, and any unique issues that arise as a result of incarceration.

(l)     Any other additional factors the court deems relevant.” 


Each parent may present evidence to the Court as to why the schedule that they are requesting is in the child’s best interest in accordance with this statute.  A Guardian ad Litem is a person certified to perform an investigation and make recommendations to the Court as to what parenting schedule would be in the child’s best interest. Either or both parents may request a Guardian ad Litem to be appointed. 
Guardian ad Litems in divorce and parenting cases are paid privately by the parties to the case.  Generally, the Court will allocate payment of a Guardian ad Litem between the children’s parents.  This prevents one parent from purposely incurring unnecessary Guardian ad Litem fees in an effort to increase the other parent’s fees.  However, if the Court finds that either or both parents do not have the ability to pay for a Guardian ad Litem, they may order that the parent requesting the Guardian ad Litem be responsible for the cost of the Guardian ad Litem’s fees. 
It is helpful to have a Guardian ad Litem if you are looking to provide evidence that would not be easily provided in Court.  For example, a Guardian ad Litem will routinely interview children where a Judge will not typically have a child come in to Court to testify.  In addition, a Guardian ad Litem can go to a parent’s home if there are safety issues being alleged.  In fact, Guardian ad Litem can even make unannounced visits to a parent’s home if they deem it necessary.
If both parents are represented by counsel, it is helpful for the attorneys to agree upon who will be appointed Guardian ad Litem.  If the parties are not able to agree, the Court will appoint a Guardian from the list of Court approved Guardian ad Litems, leaving the parties with no control over who is appointed. 
Once a Guardian ad Litem is appointed, he or she will send a Questionnaire and Stipulation to the parents for signature.  As part of this process, both parents provide information they believe is relevant to the case, including a list of witnesses for the Guardian ad Litem to speak with. 
Upon receipt of these documents and the retainer fee, the Guardian ad Litem will begin the investigation.  The process that the Guardian ad Litem uses during the investigation varies.  It generally involves interviewing both parents, the children, and going to the parents’ homes.  The Guardian ad Litem may also speak to the children’s counselors and teachers. 
Once the Guardian ad Litem completes the investigation, he or she will issue a final report detailing the information received and recommendations.  Many times after the Guardian ad Litem issues a final report, the parents are able to use the Guardian ad Litem report as the basis to negotiate a resolution to the case.
If parents are still unable to reach a resolution, the Court will schedule a final hearing where both parents have the opportunity to present evidence.  In addition, the Guardian ad Litem testifies as to the basis of his or her opinions and recommendations.  Both parents have the right to question the Guardian ad Litem.
Although the Court considers the testimony of the Guardian ad Litem when issuing its Court Order, the Court will also consider any other evidence presented by the parents at the final hearing.  Ultimately, it is still the Judge and not the Guardian ad Litem that makes the final parenting orders.