Guardians ad Litems, Psychologists, and Parenting Co-Ordinators

In a contested custody case, it is common to have the involvement of guardians or custody evaluators. A guardian is a qualified individual formally appointed by court order to represent the best interests of the child or children. Georgia Uniform Superior Court Rule 24.9.  In Georgia, the guardian ad litem's role is "to protect the interest of hte child and to investigate and present evidence to the court on the child's behalf."  Padilla v. Melendez, 228 Ga. App. 460 (1997).  

The guardian is the eyes and ears of the court. Concerning who serves, the parties - in consultation with counsel - usually come to an agreement in advance of the court order appointing the guardian. Or, the court can appoint the guardian if the parties cannot agree. As there must be a case pending for a guardian to be appointed, you only have a guardian in a contested action.

However, if your case is not yet contested - if you are using the Roadmap Steps, but can't yet agree on custody - you can agree to use a neutral "parenting coordinator" - see below - prior to the filing of a contested action. Or your circumstances may require a more formal custody evaluator who can conduct a thorough medical and psychological evaluation of the entire family. You can enter a formal agreement with your spouse and the parenting coordinator / evaluator regarding his or her scope or work and, potentially, agree that the parenting coordinator will serve as the guardian should the case proceed to the contested phase.

Once appointed, the guardian will interview the parties, the children, witnesses designated by each side, and make a custody recommendation to the court (i.e. who should be the primary custodian, how legal custody should be awarded, final decision makings, visitation, etc.). Guardians are typically lawyers who bill like lawyers. They are parties to the action and will appear and testify at all hearings and the final trial.

They are powerful as the court will usually follow the guardian’s recommendation. (However, the recommendation of the guardian is not a substitute for the court’s independent discretion and judgment based on the evidence presented. Uniform Superior Court Rule 24.9(6). See King vs. King, 284 GA. 364,667 S.E. 2nd 30 (2008), citing Hammond vs. Hammond, 282 Ga. 456, 651 S.E.2nd 95 (2007).) Atlanta Child Custody Attorney Russell Hippe refers to guardians as "mini judges", who, in most cases as a practical matter, make the custody determination.

Guardian can get into far more detail than can be covered in a contested hearing, even a final, multi day trial. A fair and balanced guardian is a tremendous asset to the case. However, they are expensive. Their costs is usually split evenly between the parties and the final allocation addressed at the final trial, along with attorney's fees and other costs of the action.

Prior to an order being entered on who has final say in matters of healthcare, either parent can take a child to a psychologist. This is often this is good advice in advance of a custody dispute. A good psychologist can find out if there is any evidence of physical or sexual abuse, if this is a legitimate concern. Or the psychologist can look for evidence of parental alienation, if you believe your spouse is attempting to turn your child against you. And/or the psychologist can help with a plan to minimize the impact of the divorce on the child. It is important that you fully understands the issues of privilege that apply to the prospective testimony of psychologists, as you will want the psychologist to be able to testify, if needed.

If you believe your spouse has mental health issues, you can move to have he or she formally evaluated by a court appointed psychologist or other mental health expert. Or the guardian can make this request. See, U.S.C.R. 24.9(8)(a). The court will order the evaluation and the conditions thereof. The court will commonly order the entire family to be evaluated. The costs is typically split between the parties, with the ultimate expense allocation to be reserved until the time of the final trial. The psychologist will render a confidential report and may testify at a custody hearing. The guardian will typically work closely with the court appointed psychologist.

Testimony of licensed private psychologist who counseled husband and wife and their children regarding family issues (where the entire family was the patient) was privileged and thus inadmissible in wife’s action to modify child support; communication with psychologist did not lose privileged status merely because family was treated jointly. O.C.G.A §§ 24–9–21, 43–39–16.

Odom v. Odom, 291 Ga. 811, 733 S.E.2d 741 (2012).

The aforementioned privilege rule ordinarily does not apply in the context of a court ordered evaluation as treatment is typically not sought - just an evaluation is ordered. The issue of privilege can be addressed in the order of appointment - privilege would only apply to specific follow up treatment secessions, if they occur - not to the initial evaluation secessions.

Generally, a parenting coordinator is a mental health provider, such as a child psychologist, or a legal professional with specific training and experience in resolving parenting conflict. Parenting coordinators work directly with both parents to help them come to a consensus regarding how to appropriately advance the best interests of the children. Parenting coordinators are not Guardian Ad Litems unless they are so appointed by court order. Unless formally appointed as a guardian, they are not formally a party to the case and will not make a formal custody recommendation.

Rather, parenting coordinators are independent parties (neutrals) chosen by the parties to help parents co-parent more effectively and help parents make appropriate decisions regarding child custody related issues. They can be helpful in high conflict cases. They can help parents reduce conflicts, make good decisions for the children, and provide a constructive framework to establish the relationship necessary for both parents to be effective co-parents during the custody case and afterwards.