Note: The Due Process Rights of Parents to Cross-Examine Guardians Ad Litem in Custody Disputes: The Reality and the Ideal

By Emily Gleiss. Full text here.

Currently, state statutes that govern guardian ad litem appointments for children in custody disputes fail to protect the due process rights of parents. Focused solely on the best interests of children, these laws provide few safeguards against the infringement of parents’ rights to the care, custody, and control of their children, and a fair trial. State laws vaguely define the roles and duties of guardians ad litem, require little accountability, and insulate guardians ad litem from civil liability. The ability to cross-examine the guardians ad litem who recommend child placement is often a parent’s most significant protection against the power and influence of guardians ad litem. Unfortunately, many state laws either deny parents this protection explicitly, or diminish the protection’s capacity to adequately guard parents’ interests by providing guardians ad litem and trial judges with exceptional power and discretion.

This Note argues that states should adopt a model statute that clarifies the guardian ad litem’s role as a best interests attorney for the child. The statute should also specifically provide for guardian ad litem duties, training, and accountability. Beginning with an overview of current guardian ad litem laws and an examination of parental due process rights, this Note then compares three state statutes and assesses each statute’s impact on the rights of parents. This Note concludes that when the law defines the guardian ad litem’s role as a best interests attorney, parents’ due process rights are adequately protected without the need for cross-examination. An attorney’s vulnerability to civil suits and her limited power as advocate for a party to the proceedings eliminate the overreaching power and discretion allocated to guardians ad litem by current state statutes.