Guardians Ad Litem (GALs) in Mississippi

Sometimes in custody cases a chancellor will appoint a Guardian Ad Litem (“GAL”). This is typically an attorney who is required to conduct an investigation and report back to the court. The standard operating procedure on how GALs operate vary considerably throughout Mississippi, so the generalities that we provide here might not apply to your case. Your lawyer will have the clearest idea as to what you can expect if a GAL is appointed to your case.

GAL Appointment

GALs are usually attorneys who have taken some amount of training specifically geared toward GALs.  Some lawyers have practices that are primarily built around working as GALs; other lawyers accept GAL appointments only occasionally. In many counties, the chancellor has a short list of go-to persons to appoint as GALs on particularly difficult cases.

GALs are appointed under a few scenarios:

• A party has made an allegation of neglect or abuse

• The chancellor wants a particular issue investigated, such as whether a parent is abusing drugs or why the child has so many unexcused absences

• The chancellor wants a larger investigation, such as how the Albright Factors should be scored or whether grandparent visitation is in the child’s best interest

• One or both parties asks the chancellor to appoint a GAL

If a party has made an allegation of neglect or abuse, the chancellor is required to appoint a GAL; otherwise, the chancellor has the discretion to decide whether or not to appoint one.

At the same time that the GAL is appointed, the chancellor will designate the issues that the GAL is to investigate. The larger the issue to be investigated, the more time and effort the investigation will require.

Occasionally, a chancellor will appoint a GAL not to conduct an investigation, but rather to either (a) represent the child; or (b) to advocate for what the GAL understands to be the child’s best interests. For example, if a GAL is appointed to represent the child, then the GAL has the duty to seek the child’s lawful objectives, no matter how much the GAL thinks that those objectives are not a good idea.

On the other hand, if the GAL is appointed “to represent the child’s best interests,” then the GAL’s duty is to seek whatever outcome he thinks is best for the child, regardless of whether the child wants that outcome or not.

The chancellor will often make two decisions about how the GAL’s fees will be paid. First, when the GAL is appointed, the chancellor might order one or both parties to post a deposit for the GAL to draw against. Very often, the chancellor will make a second decision at the conclusion of the case as to who will pay the rest of the GAL’s fees and whether one party should reimburse the other for the initial deposit.

If a GAL is appointed to investigate a charge of child abuse, which is later determined to be without foundation, the chancellor will order the party making the unfounded child abuse charge to pay the GAL’s fees, as well as the reasonable attorney’s fees incurred by the defending party in responding to the allegation.

GAL Investigation

The chancellor will often vest the GAL with wide-ranging authority to collect information pertinent to the investigation. For example, armed with nothing more than the order of appointment, a GAL can often not only obtain the child’s school and medical records, but also can interview the child’s doctor, teacher, and principal — all without obtaining the parent’s permission. Moreover, the interviews often do not take place in the presence of the parent (or the parent’s attorney) or even with their knowledge.

The GAL is required to interview the child, or in the case of very young children, to at least meet them. It’s not unusual for the GAL to interview the child several times or to give the child the GAL’s contact information in case the child wants to contact the GAL. 

The GAL will also interview each parent at least once, if not several times. In some counties, it is not uncommon for the GAL to reach out to the parent even if the parent is represented by an attorney or to go to the parent’s house — sometimes unannounced for a “surprise inspection.” Normally, parents who are represented cannot be contacted this way by other lawyers, but in some counties, this is how it’s done. This is a hot topic in Mississippi law, so you will want to consult with your attorney as to what you can expect with regard to the GAL contacting you directly, rather than through your attorney.

This is not to say that you should avoid the GAL; quite the opposite. You and your attorney will want to do all that you can to aid the GAL’s investigation. This probably includes at least one meeting with the GAL and your lawyer at one or the other’s office, so that you can fully lay out your side of the case.

As we have mentioned, the GAL will not only meet with the child and both parents individually, but also with other witnesses. These may be doctors, teachers, and principals, as well as neighbors, friends, family members, coaches for youth sports/activities, day care workers, employers and co-workers, law enforcement officials — in short, anyone who might shed light on the subject under investigation. 

Working with the GAL

A parent’s initial meeting with the GAL often takes place either at the office of the parent’s attorney or else at the GAL’s office. This meeting is your first opportunity not only to explain your case to the GAL, but also to present yourself as a reasonable, responsible, credible person. Just as the chancellor will later do at trial, the GAL will at this meeting begin making decisions as to how believable you are.

In your discussion you should expect to discuss not only what has been going on, but why you’ve made the decisions that you have. If you are in a custody fight, chances are that the other parent is accusing you of making bad decisions; you want to explain to the GAL the decisions that you made and why they were reasonable at the time that you made them. 

Not only will you explain your side of the case, but you will also supply the GAL with the videos, photographs, records, documents, etc. that prove the truth of what you are saying and also the contact information of the witnesses that the GAL should speak to. It’s not a bad idea to think of your presentation to the GAL as you would your presentation to the chancellor. The easier you make the GAL’s investigation, the easier it is for the GAL to reach the conclusions that favor you.

One mistake to avoid is to smother the GAL with information. It’s reasonable to expect the GAL to interview three to five witnesses; demanding that the GAL interview 35 witnesses is unreasonable.  Similarly, it’s reasonable to provide one or perhaps two three-ring binders of documents for the GAL to review; it’s unreasonable to expect the GAL to review 30 bankers’ boxes of records.

If there’s no other way to demonstrate your case than by providing an ocean of information, at the very least do what you can to make that ocean as navigable as you can. Sort it, annotate it, summarize it, make it easy for the GAL to get to “the good stuff,” whatever that might be. Thinking your way through the most effective way to present your case to the GAL is a process similar to thinking your way through your presentation at trial. You wouldn’t just dump a disorganized mess on the chancellor at trial and expect a favorable result; it’s the same with the GAL.

GAL Ruling and Recommendations

The GAL is required to submit a report of his investigation, either in writing or in testimony at the courthouse or both. The report should include a discussion of who the GAL interviewed and what the GAL reviewed over the course of the investigation.

In most circumstances the GAL is required to make a recommendation to the chancellor as to what decisions the GAL believes that the chancellor should make. The recommendations of a GAL are never binding on the chancellor. The chancellor is always free to disregard the GAL’s recommendations, although he might be required to state on the record why he is disregarding them.

The GAL report and recommendation are typically submitted during the final trial of the case. In fact, the GAL is often the last witness who takes the stand at trial.

On a completely different note, it often happens over the course of litigation that a controversy will arise (frequently concerning visitation), when one party or both will seek direction from the GAL (e.g., Do I have to let the father have visitation during the COVID-19 pandemic? Can you tell my ex-wife to switch weekends with me because I have to work during my next scheduled weekend with the children?). This can be a tricky situation.

On the one hand, if the GAL offers a suggestion as to what to do, you are not required to follow that advice. The GAL is appointed by the chancellor but is not the chancellor and has no authority to act in place of the chancellor. The GAL cannot order you to do what he says. 

On the other hand, the chancellor appointed the GAL with the understanding that the GAL will be impartial and exercise common sense in the discharge of his duties. In some counties, the GAL’s opinion is highly influential with the chancellor. Thus, when the controversy is placed before the chancellor, he will likely be interested to learn why you rejected the GAL’s suggestion.

In summary, a GAL can sometimes be very useful to efficiently resolve controversies that arise while your case is pending. On the other hand, if the GAL makes a poor suggestion, you’re not obligated to follow it, but if you don’t, you will want to carefully discuss with your attorney how best to proceed.