Family Law

A Dramatic New Guardian Ad Litem Rule in Ohio

By Shawn P. Hooks

The Ohio Supreme Court instituted new rules on March 1, 2009, regarding the role and responsibilities of a Guardian ad Litem (GAL).  Ohio Rule of Superintendence 48 codifies these rules.  As background, a GAL is a person appointed by the court in both domestic relations and juvenile cases to protect the best interest of the child.  The GAL typically issues a Report to the court detailing the investigation and setting forth a recommendation.  It is not uncommon for a GAL to be involved in most juvenile cases and in many domestic relations cases involving minor children.  Prior to Rule 48 there were no uniform GAL rules in Ohio, but many courts have had their own rules; and in addition, lawyers serving as GAL?s were bound by the Ohio Rules of Professional Conduct.

The new Rule does several things.  But the most important may be establishing certain training requirements and defining the responsibilities of the GAL in his or her investigation.  Finally, the Rule sets forth what must be included in the GAL?s Report.

The first major element in the rules is that it sets forth specific training requirements.  Previously, in some Courts there were virtually no training requirements. In other Courts a person was mandated to attend a training seminar before becoming a GAL.  In Montgomery County, for instance, an attorney had to take a general Juvenile Law Certification Seminar first, which was six hours of education.  Beyond that, a person had to undergo a two-day, twelve-hour seminar discussing numerous topics in order to become a GAL.  Those training programs in Montgomery County were excellent, in my opinion, having attended them in 2008. However, other Courts would allow attorneys to serve as a GAL with no additional training at all!

Under the new Rule, an attorney must complete, at a minimum, a six-hour course that has been approved by the Ohio Supreme Court.  This course must include training on child development, various communication skills, child abuse prevention, general family and child issues such as drug abuse and domestic violence, and a legal framework for conducting records checks and utilizing resources.  In addition, an attorney who has met these requirements and is already serving as a GAL must complete a three-hour course annually to stay updated.  The various courts are responsible for monitoring and making sure all attorneys remain in compliance.

The next major component of the rule is that it sets forth the responsibilities of a GAL.  These are the minimum requirements a GAL must do in each case unless it is ?impractical or inadvisable.?  The list includes seventeen different things.  First and foremost is that the GAL is to represent the ?best interests? of the child.  This includes being independent, objective and fair, as well as being courteous in all the proceedings.  It goes without saying that a GAL needs to appear and participate in all hearings where the child?s interest is at stake.  If the GAL is an attorney,  they should file pleadings when appropriate.

If the person is both attorney and GAL for the child, it is his or her responsibility to advocate for both the child?s wishes and for the best interest of the child.  If there is a conflict between these two positions, the GAL must notify the court, in writing, as soon as possible in order to have the conflict resolved.  The GAL must avoid any other conflicts of interest; and if one arises, must notify the Court promptly.  He or she must immediately indicate that they are serving as a GAL when contacting individuals for the case.

Finally, the GAL must take steps to become familiar with all aspects of the case; including the child, family members, and other individuals in their lives.  In order to do this a GAL must meet and observe the children with both of the parents, or prospective guardians, as well as conduct an interview with the child outside the presence of the parents.  Additionally, a GAL must meet and interview the parties and other significant individuals who have knowledge of the case.  A home study must be conducted of any homes where the child might live.  Depending upon the age of the child, the GAL must determine the child?s wishes.  The investigation must include a review of the case records and any criminal, civil, educational, therapy or counseling records and administrative records pertaining to the child or the child?s family.  The GAL must interview school personnel, medical providers, and child protection workers and obtain copies of any applicable records.  If there is a need for additional psychological testing or substance abuse testing, the GAL should recommend that the court orders additional testing.  Finally, the GAL must do anything else necessary to make a recommendation based on a thorough investigation and what is in the best interest of the child.

The GAL conveys his or her recommendations and the findings of the investigation in a written report that is submitted to the court.  The rule establishes certain requirements in compiling a report.  The report is required to list who was interviewed, what documents were reviewed, what activities were performed, and any relevant information considered by the GAL in making his or her recommendation.  The report is to be filed seven days in advance of any hearing.

The report of a GAL is a very important part of the court proceedings.  I am pleased to see this statewide effort to mandate complete and thorough GAL investigations.  In the past, unfortunately, some court-appointed GALs put minimal effort into their investigations resulting in poor reports.  A person can lose custody of a child predicated upon a GAL?s recommendation.  Undertaking this role is a tremendous responsibility which affects many lives.  Our justice system demands caring, compassionate and highly trained GALs who review all facts of the case before making any recommendation.

To read Superintendence Rule 48, please click here.

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Full post as published by Ohio Family Law Blog on June 06, 2009 (boomark / email).