If a judge has appointed a guardian ad litem in your case, or your lawyer has said one is coming, it is normal to feel watched. Here is exactly what the role is, what that person is allowed to do, who pays for them, and what actually happens next.
What Is a Guardian ad Litem?
A guardian ad litem is a lawyer the court appoints to represent your child’s best interests in the case, separately from either parent’s lawyer.
Two things follow from that and both matter.
The guardian ad litem is not your lawyer and not your co-parent’s lawyer. They represent the child. That means they are not on anyone’s side in the way parents expect, and they are not obliged to agree with either of you.
And they do not decide anything. They investigate and they make a recommendation. **The judge decides.** People often talk about a guardian ad litem’s “decision,” and there is no such thing.
When Does a Court Appoint a Guardian ad Litem?
Sometimes the court chooses to, and in one situation Missouri requires it.
RSMo 452.423 draws a line between the two.
- Discretionary. “In all proceedings for child custody or for dissolution of marriage or legal separation where custody, visitation, or support of a child is a contested issue, the court may appoint a guardian ad litem.”
- Mandatory. “The court shall appoint a guardian ad litem in any proceeding in which child abuse or neglect is alleged.”
That difference is worth understanding before anyone makes an allegation. Where abuse or neglect is alleged, the appointment is not a judgment call the court gets to weigh. It follows.
A party can also ask for one. If you think your case needs an independent voice for your children, that is a request your lawyer can make.
What Are the 3 Duties of a Guardian ad Litem?
Missouri gives a guardian ad litem three specific jobs, and the first one explains why the role carries the weight it does.
- Act as the child’s legal representative. The statute makes the guardian ad litem “the legal representative of the child at the hearing,” who “may examine, cross-examine, subpoena witnesses and offer testimony.” That is not an advisory role. It is a lawyer with standing in your case.
- Investigate and find out what the child thinks. The guardian ad litem conducts interviews “with persons having contact with or knowledge of the child in order to ascertain the child’s wishes, feelings, attachments and attitudes.”
- Act if the child is in danger. Where the guardian ad litem believes a child alleged to be abused or neglected is in danger, they can request that a juvenile petition be filed.
Read the first duty again. A guardian ad litem can subpoena witnesses and put on evidence. That is why their view matters in the case, and it is a better explanation than anything about what judges tend to think.
What Does the Investigation Actually Involve?
Interviews, records, and usually a conversation with your child without you present.
In practice, expect some combination of the following.
- Interviews with both parents, separately.
- A conversation with your child alone. This is normal and it is contemplated by the statute’s direction to ascertain the child’s wishes, feelings, attachments and attitudes.
- Records. School records, medical records, and anything else relevant.
- Third parties. Teachers, doctors, counsellors, sometimes family members.
- Seeing the home, in some cases.
A few things that help, and they are all the same thing in different forms. Be straightforwardly cooperative, be on time, answer what is asked, and do not coach your child. Coaching is usually obvious to someone who does this professionally, and it damages the parent who did it rather than the parent it was aimed at.
Who Pays for a Guardian ad Litem?
Usually the parents, and the court has real tools to make sure it happens.
This is the question people are most surprised by and it is right there in the statute. Under RSMo 452.423 the court may issue “a direct payment order to the parties,” and non-compliance can be treated as contempt. Alternatively the court may “award such fees as a judgment to be paid by any party to the proceedings or from public funds.”
So there are three possibilities. A direct payment order to you and your co-parent, a judgment against one party, or payment from public funds. The first is the common one.
Ask your lawyer early what the likely cost is and how it is usually apportioned in your court, because it is a real line in the budget of a contested custody case.
Is a Guardian ad Litem Appointed in Every Custody Case?
No. Most custody cases never have one.
The appointment is discretionary in an ordinary contested case, and plenty of contested cases resolve without a guardian ad litem ever being involved. Where they show up most often is where abuse or neglect has been alleged, where the dispute has become entrenched, or where something specific about a child’s circumstances needs an independent look.
If you and your co-parent can reach agreement, whether directly or through mediation, the question generally does not arise. Our child custody page covers the range.
What Does a Guardian ad Litem Do in a Missouri Adoption?
In an adoption the appointment is mandatory for any child, and it runs on a different statute.
Worth separating, because people assume it is the same rule. RSMo 453.025 says the court shall, “in all cases where the person sought to be adopted is under eighteen years of age, appoint a guardian ad litem.” No contested issue required and no allegation required. It is automatic.
The duties are similar in shape, including a duty to “ascertain the child’s wishes, feelings and attitudes regarding the adoption.” Our page on adoption covers that process.
What If You Disagree With the Recommendation?
A recommendation is evidence, not a verdict, and it can be tested like any other evidence.
A guardian ad litem’s view may differ from yours, and sometimes from both parents’ views. That is uncomfortable and it is not the end of your case.
- Read it properly before reacting. Sometimes the disagreement is narrower than it first appears.
- Go through it with your lawyer. Recommendations rest on facts and on interviews, and both can be examined.
- A guardian ad litem can be cross examined. They put on evidence and they can be questioned on it.
- Do not take it out on your child. This one matters more than the rest of the list combined.
Who Can Help With a Guardian ad Litem in St. Louis?
The most useful thing early on is knowing what to expect and how to prepare for the parts of the process you can control.
Bardol Law Firm practices only family law, and we are in the St. Louis County Family Court and the City of St. Louis, St. Charles and Jefferson County courts regularly. If a guardian ad litem has been appointed in your case, we will walk you through what the process looks like, what to bring, and what the cost is likely to be. If one has not been appointed and you think your children need one, we can talk about whether to ask. Our other family law questions and answers cover the rest.
Every client gets a named paralegal on the file, and we generally return calls within one business day. Call 314.918.0100 or reach us through our contact page. Family Law, Simplified. Fill out the form or call to set up a consultation.
This page is general information about Missouri law and is not legal advice. Every case turns on its own facts. The choice of a lawyer is an important decision and should not be based solely upon advertisements.