By: Christopher A. Pearsall, RI Divorce Lawyer
Important Note: As a Rhode Island lawyer I am limited to answering your question only as it relates to Rhode Island Divorce and family law situations. Other jurisdictions may vary slightly or greatly from this standard.
Rhode Island and Guardian Ad Litems
When a Guardian Ad Litem is appointed in a case, typically they are appointed to protect the best interests of a minor child (or children), although in rare cases a Guardian Ad Litem may be appointed to represent the interests of an a party in a proceeding who has demonstrated a decreased capacity to understand or appreciate the nature of the proceedings and the ramifications that might occur.
For instance, I am aware of one case many years ago where a Guardian Ad Litem was appointed by a family court judge in a divorce proceeding in which one of the parties could not quite comprehend how the divorce worked and the repercussions of certain decisions that had to be made because the party was not in touch with reality and frequently took advice from a little man that sat (invisibly I might add) on the party’s right shoulder. The party would routinely consult the little man in the middle of court proceedings causing great confusion and frustration for both the lawyers and the court. In that case the court had to consider appointing a Guardian Ad Litem for the adult rather than a child, to make sure that the interests of the adult were reasonably protected in the adult’s best interests. This became the role of the Guardian Ad Litem. The recommendations were to evaluate settlement offers and determine whether they should be accepted or rejected and what needed to be produced in the way of documentation and/or answers to questions as the divorce litigation proceeded and whether the adult understood the nature and consequences of the proceedings.
The recommendations could relate to any number of things based upon what the court’s directives are to the Guardian Ad Litem.
When it is a minor child or children involved the recommendations are typically regarding which parent may be the most important parent to have physical placement of a child (in the child’s best interests) based on the legal requirements the Court itself would often consider under the prevailing law in the state. For instance, in Rhode Island the seminal case is Petinnato v. Petinnato, 582 A2d 909 (RI 1990) which originally set forth eight (8) factors the Rhode Island family court judge presiding over the case (and consequently a Guardian Ad Litem) must consider regarding the best interests of a minor child.
Typically, the recommendations of the Guardian Ad Litem may relate to who the parent who should have primary placement of a minor child or children should be, whether there should be joint physical placement where each parent spends equal time with both parents, what parenting time a non-placement parent should receive and under what conditions, whether counseling is recommended for the minor child or children or one or both parents.
What is important to know is that recommendations of the Guardian Ad Litem are just that … recommendations. The judge may certainly taken them into consideration but the judge is not required to abide by those recommendations nor is the judge required to accept any factual findings the Guardian Ad Litem may make as a result of his or her investigation to arrive at his or her recommendations.
In other words, the recommendations of the Guardian Ad Litem do not bind the judge. They are merely to help the court and they are for the judge’s consideration only. However, it is worth mentioning that if the Guardian Ad Litem is well-known and trusted by the judge because he or she is thorough, is well-known to the court as doing a good job evaluating prior cases that may have been assigned to the Guardian Ad Litem, then the court is likely to give great weight to the Guardian’s recommendations. An opposing party has the right to challenge the Guardian’s findings and recommendations in court. However, if this is a long standing Guardian used by the court and in which the court has confidence, this may be an uphill battle for any person attempting to challenge the Guardian Ad Litem’s recommendations. However, if the Guardian's recommendations are contrary to your legal rights as a parent or deprive you of fundamental time in your wife and your child's life then you may want to challenge them.
What is most important to remember is that the Guardian Ad Litems’ recommendations do not bind the judge at all and the judge may reject them in whole or in part if the court disagrees with the findings or finds the investigation to be less than thorough.
