In Rhode Island Family Court, judges rarely appoint a lawyer to represent a child. There is no tradition or culture of lawyers representing children in Rhode Island Family Court. The Vast Majority of attorney appointments are for guardian ad litems for the minor children.
What is the difference between a lawyer for a child in Family Court and a guardian ad litem?
A lawyer for a child would represents the child’s legal interests. A guardian ad litem advocates for the best interest of the child. It is not a subtle distinction! It is actually an important distinction.
The Basics of a GAL representing the child’s best interest
In Rhode Island, a guardian ad litem is an individual who represents the hypothetical best interest of the minor child in a child custody, visitation or other type of amily court case. The Guardian is not a lawyer for the minor child! Guardians are frequently used in contentious custody cases when the parties can afford the additional expense. The family court judge could make an appointment or the parties can agree to a guardian being appointed. If the parties cannot afford a guardian, the court can have Rhode Island Family Services do a home study and investigation for free. Typically both parents are responsible for half of the GAL fees.
Legal right to appoint a GAL
“It is well settled that the trial justice has the inherent power to appoint a guardian ad litem whenever it appears that there are interests of a minor to be protected. Zinni v. Zinni, 103 R.I. 417, 421, 238 A.2d 373, 376 (1968). Parrillo v. Parrillo, 495 A.2d 683, 686 (R.I. 1985)
“The court may, if in its discretion it deems it necessary or advisable, appoint an attorney or a guardian ad litem to represent the interest of a minor or dependent child with respect to his or her support, custody, and visitation.” § 15-5-16.2.
The Rhode Island Supreme Court gave wide discretion to the trial judge to appoint a Guardian ad Litem in child custody cases in family court. The GAL constitutes an officer of the Court. State V Demers, 576 A2d 1221 (R.I. 1990) The obligations of a GAL are provided in R.I.G.L 15-5–16.2 (c) (v)
“(i) In determining whether an appointment should be made, the court shall consider the extent to which a guardian ad litem may assist in providing information concerning the best interest of the child; the age of the child; the wishes of the parents, as well as their financial resources; the nature of the proceeding including the level of contentiousness, allegations of child abuse, or domestic violence and the risk of harm to the child if a guardian is not appointed; or conflicts of interest between the child and parents or siblings;” Id.
What qualifications are necessary to be a guardian Ad litem in Rhode Island Family Court?
A Guardian Ad Litem is typically an attorney who has been certified by the Rhode Island Family Court. They are required to get certified by the Court after hours of training. They could possible also be a psychologist or psychiatrist. It is very expensive. Usually, both parties pay 1/2 of the expense. However, if one party has substantially more resources then the other party then that person may be ordered by the judge to pay up to 100 percent of the cost. If one-person’s conduct caused the need for the guardian ad litem or is at fault they could be ordered to pay up to 100 percent of the cost.
The expense of a guardian ad litem
A retainer usually averages between $3,000 to $5,000 depending upon the complexity of the case. This can be very difficult to afford in a divorce or custody case because both parties are paying their divorce lawyer. In complex cases involving lots of evidence, witnesses and complexities, a guardian may cost substantially more than $4000. They bill on an hourly basis ranging between $250 to $350 an hour.
The guardian aditem does not make the final custody, placement or visitation decision.
A guardian does not make the final decision as to which parent shall get physical placement or legal custody of the child. The judge makes the final decision regarding custody, visitation and physical placement / possession after hearing testimonnd reviewing evidence at trial or hearing. The guardian usually drafts a report to submit to the Court with his or her findings and recommendations. However, in many cases the GAL issues a verbal report to the court at a court hearing on the record.
What types of cases can guardians be appointed in?
A guardian ad Litem could be appointed in a dcyf case, divorce case, visitation case, custody case or other type of family court action
What role does a Guardian ad Litem for a child perform?
The Guardian interviews both parents and interviews other witnesses involved in the children’s life such as teachers, social workers, guidance counselors, psychologists, psychiatrists, grandparents, aunts etc. The guardian will have full access to medical records related to the child and perhaps the parents. He will have access to education, religious and other records related to the child. The amount of witnesses interviewed sometimes depends on whether the parties can afford additional work. The guardian ad litem typically interviews the minor children about their opinions and preferences concerning legal custody, placement and visitation. The older the child is the more weight the he or she will give to the children’s preferences regarding custody or visitation. The Guardian can recommend that other professionals get involved such as licensed clinical social workers, therapists, co-parenting counselors, parent child reunification therapists, psychiatrists and psychologists.
Can a parent challenge the Guardian’s recommendations?
Even though the judge makes the final decision regarding placement, legal custody and visitation, in reality, the guardian’s report usually decides the issues. The judge typically adopts the recommendations of the guardian ad litem. Both parties have the right to call the guardian as a witness and challenge the opinions and the basis of those opinions. However, judges typically get frustrated by anyone who challenges the recommendations. It is difficult to get a RI Family Court judge to not adopt the recommendation of the GAL.
Legal Notice per RI Rules of Professional Responsibility:
The Rhode Island Supreme Court licenses all lawyers and attorneys in the general practice of law, but does not license or certify any lawyer/ attorney as an expert or specialist in any field of practice.