What if the GAL Does Nothing?

There are pros and cons to having a GAL appointed in your case. The GAL can do things the judge can’t: he can talk with witnesses outside of the courthouse, and in doing so does not have to observe the rules of evidence (judges can only hear evidence that is admissible under the rules). The GAL can visit the child at school. He can go to the parents’ respective residences and observe in person how the child interacts with each parent. He can meet with teachers, doctors, counselors, coaches, pastors, and so forth. Best of all, if the GAL recommends that you should have custody, or more visitation (or whatever it is you’re seeking in court), he will have credibility with the court because he is a neutral investigator.

But there are drawbacks as well. If the GAL recommends you should not have what you’re seeking in court, he will have credibility with the court. The GAL can be expensive, and you’re already paying for the lawyer you hired to represent you.

Two cases decided in 2022 illustrate another drawback: sometimes the GAL doesn’t do his job. In both cases, the GAL did not meet with the child, spent very little time with either parent, and did not talk to any witnesses. That sometimes happens. GALs aren’t working on your case alone, they’re attorneys handling many cases at the same time. It is easy to get so busy that your case gets put on the back burner. What do you do?

First, it’s helpful to make things easy for the GAL. Schedule a day to meet with her, and arrange to have each of your witnesses come for their own interview with the GAL – i.e., instead of her having to go to them, they come to her. Write a narrative of the case that explains why you’re in court and why you should win. Make a binder of your relevant documents (e.g., photos, school records, medical records, drug tests) so that the GAL doesn’t have to compile the documents herself.

Second, talk with your attorney about asking the judge to enter a scheduling order. Scheduling orders set out deadlines by which specified litigation projects must be completed. For example, the order might provide: (a) written discovery must be completed 90 days before trial, (b) expert witnesses must be designated 60 days before trial, (c) depositions must be completed 30 days before trial, and (d) the GAL’s written report must be submitted 15 days before trial. This last has the effect of “lighting a fire” under the GAL. The scheduling order might even designate days when the GAL will interview your witnesses, and another for your opponent’s witnesses.

What if the GAL still refuses to do her job? How can you fire a GAL? It all depends on your judge’s predisposition; many are very reluctant to fire a GAL. It’s helpful to know that judges are perfectly aware that sometimes GAL’s don’t do their job. However, judges are also aware that some litigants view a GAL as a “free lawyer” and wear them out with daily (if not hourly) texts and emails. It can be fatal to your case if you are perceived as someone who is wearing out the GAL. Listen to your lawyer on this point.

You will want to very carefully document your attorney’s respectful, professional, courteous, frequent attempts to have the GAL meet with you, interview your witnesses, review your documents, and so forth. You will also document the GAL’s failure to respond, to schedule appointments, or blowing them off, over and over again. Don’t be surprised if the judge gives the GAL a second chance. But ask for deadlines to be imposed. And if the GAL still won’t do the work, you might need to ask the judge a second time.

If the GAL simply won’t do the work, and the court won’t make her do the work, there is not much else you can do. But take comfort in the fact that your attorney will have the raw material for a thorough cross-examination of the GAL at trial. Many of the points that you wanted the GAL to investigate and prove can be established through that cross-examination.