The differences between GAL, Child Representative and Attorney for the Child
In order to protect your children’s best interests in a divorce or parentage case, the judge may choose to appoint an attorney to represent your children. The judge may do this of his or her own volition, or one of the parents might request it. This usually happens if the parents are struggling to reach an agreement regarding the allocation of parental responsibilities (specifically, parenting time and decision-making).
The person being appointed is an attorney, but they can take on various roles. There are three types of attorneys who might represent your children:
- Guardian ad Litem (GAL): A GAL is an attorney who is acting like a witness. He or she interviews the parents, the children, and any other individuals deemed necessary, and then testifies as to what he or she believes is in the best interests of the children. A GAL may end up writing and filing a detailed report, or may simply appear periodically in court to provide oral reports. If the case proceeds to a hearing or trial, the GAL may be called as a witness to testify.
- Child Representative: A child representative may also conduct an investigation similar to that of a GAL, and may occasionally advise the court as to the best interests of the minor children. However, a child representative acts as an attorney rather than as a witness. Therefore, rather than testifying as to the children’s best interests (like a GAL), he or she is making arguments on behalf of the children’s best interests to the court. The child representative’s ultimate goal is to encourage settlement between the parties in a way that protects the children’s best interests. However, if the case proceeds to a hearing or trial, the child representative may question witnesses the same as the parents’ attorneys and will argue what he or she believes is in the children’s best interests based on the evidence.
- Attorney for the Child: An attorney for the child acts as an attorney by advocating for the child the same way the parents’ attorneys advocate for them, as independent counsel. The major difference between an attorney for the child and a child representative is that while the child representative advocates for his or her own view of the child’s best interests, the attorney for the child advocates based on the child’s expression of his or her interests. Therefore, an attorney for the child is rarely appointed, and the few circumstances in which it is done are those involving a much older child, whom the court considers mature enough to decide for him or herself what is in his or her own best interests. The child has the same relationship with his or her attorney as the parents have with theirs (including confidentiality and privilege).
An important factor to consider when a GAL or child representative is being appointed is how he or she will be paid. Like most other attorneys, the GAL / child representative will require a retainer fee up front and then have an hourly billing rate. The court may divide the fees between the parents equally, or may allocate them differently depending on a number of circumstances (e.g. the proportionate income of the parties or the reason for the appointment). The court may also choose to divide the cost one way, but leave it “without prejudice and subject to future reallocation.” This means that the division of the cost may change in the future, and that change may even be retroactive to the original appointment of the GAL / child representative. There are also free or low-cost options for parties with limited financial resources when the court still thinks an attorney needs to be appointed for the children. You should discuss those options with your own attorney before the court appoints someone.
Once the attorney is appointed to represent your children, he or she will need some time to collect and review the case file from the court and the other attorneys. Then, he or she will begin the investigation. You will be asked to meet with the GAL / child representative, and depending on the current parenting arrangement, you may also be the one asked to bring the children to their meeting. It is important to be open and honest with the GAL / child representative about your legitimate concerns and your beliefs about what is best for your children. If you are unsure about what to say, feel free to ask your own attorney. Once he or she has completed the investigation, the attorneys will begin discussing recommendations regarding settlement and the best interests of your children.