By Lisa A. Torraco-Visiting assistant professor of law-UNM School of Law
Child custody cases take a toll on all people involved. This is especially true with children. There are ways to shelter children from the pains of battling parents and court fights. Of course one way is to keep the children as far from the legal proceedings as possible. This, of course, is more easily said than done.
Courts and legislators recognize that children, especially young children, should not be caught in the middle of their parents’ battles. However, the court needs to know the child’s needs and desires.
The judge is often in a dilemma. Most judges do not want children in court for custody cases, but the judge also wants to know what is going on with the child. Therefore, in all cases involving custody disputes, the judge may appoint a guardian ad litem. A guardian ad litem is a licensed New Mexico attorney who acts, investigates and represents the best interests of the child in the custody proceeding. The child does not come to the courthouse. The guardian ad litem goes to the child’s home. The guardian ad litem meets the child, the guardian ad litem meets the parents, and then the guardian ad litem attends the court hearings.
The court order appointing the guardian ad litem will outline the role and scope of the guardian ad litem. The judge generally wants the guardian ad litem to conduct a full and complete investigation into the child’s situation. Generally this investigation includes meeting with the child, the parents and any other significant persons in the child’s life. Input of school counselors, therapists and other experts may also be important.
The guardian ad litem will also consider the expressed wishes of the child. The older the child, the greater the weight the guardian will give the expressed wishes of the child. At the conclusion of the guardian’s investigation, the guardian makes a recommendation to the court on custody, visitation and other areas the court ordered. The court will either accept the recommendations of the guardian ad litem or hold an evidentiary hearing.
It is always best to resolve issues between the parents before resorting to having a guardian ad litem evaluate custody. It is rare that everyone is satisfied by the recommendations of the guardian ad litem or the order of the court. Mediation is always a best first step. However, if the parties are completely uncooperative, here are some tips for dealing with a guardian ad litem in the New Mexico legal system:
The court may appoint a guardian ad litem without the input of the parties. If possible, tell the judge you would like to assist in the selection of the guardian ad litem. Both parties should be able to agree on the selection of a guardian ad litem. If the parties are at an impasse, have one party make a list of three prospective guardians, and have the other party select from the list of three.
When selecting a guardian ad litem, talk to other people who have been involved in custody disputes. Find out who was the guardian ad litem for their children. Get feedback. The reputation of the guardian ad litem is important. As in any field, some guardians will work more diligently than others, and some have more specialized education and experience. Do your research and select wisely. Your guardian ad litem may greatly effect the outcome of the judge’s decision on custody.
Once you have a guardian ad litem appointed for your child, it is unlikely that this attorney will ever be removed from the case. Accept from the beginning that this is a person you will have to work with for the best interests of your child.
Keep a positive attitude and communicate your concerns to the guardian ad litem. Make sure that the guardian ad litem has all the information. Give the guardian ad litem a list of names and numbers of the people whom you believe would be the most helpful in determining the best interests for your child.
Know that what may be in your child’s best interest is not necessarily what you want. This is a difficult time in which you, the parent, must set your needs aside for the betterment of your child.
Costs and fees can become overwhelming in a divorce. These costs are increased by the costs of the guardian ad litem. The guardian ad litem fees are generally divided between the parties. Know also that this fee sharing is not always an even distribution. It is not uncommon that one party may pay a greater share of the guardian ad litem’s fees than the other party. Know also that the hourly rate for the guardian ad litem is consistent with that of other practicing attorneys, ranging from $100 to $200 per hour.
In order to keep the fees down, you may want to have much information organized and prepared in advance. For example, having telephone numbers, report cards and other documentation for the guardian ad litem will save time and money in researching this information. Communication via e-mail and letters is always much less expensive than telephone and in-person contacts.