Do No Harm
Guardian ad Litem Representation
By Julie S. Rivers, Noel K. Tucker and Phillip J. Tucker
The use of the guardian ad litem in a divorce matter began before statehood. A guardian ad litem was appointed in the 1905 divorce action, Bennett v. Bennett, 1905 OK 27, 81 P. 632. In that case, the playing hide-the-assets game had already begun. There, in anticipation of divorce, husband had gifted valuable marital assets to his 11-year-old son from a prior marriage. A guardian ad litem (“GAL”) was appointed for the property owning son in the divorce case. The GAL argued that the deed conveying the marital home should remain with the son.
The appellate court affirmed the trial court’s ruling that such conveyance without proper consideration was fraudulent and the deed void. Clearly, the GAL’s recommendation was not followed, and the use of GALs in family-law matters began in Oklahoma.
The two most common ways Oklahoma attorneys are introduced to trying on the role of guardian ad litem arises out of two common scenarios. In the first situation, you are sitting at your desk sipping mocha-flavored coffee and receive a phone call from either the court or counsel advising that you have just been appointed GAL in the Smith v. Smith case.1
The other scenario has you sitting in the courtroom waiting for your case to be called. You are wishing the pending matter (which you haven’t particularly been paying much attention to and is now becoming quite heated) will conclude soon so you can present your case. All of a sudden you hear your name being mentioned. The court and the parties are now looking at you. As you now focus your full attention to the present, you discover the court was looking around the courtroom in search of a guardian ad litem, noticed you and has just appointed you in the present action! Both attorneys come up to you and say, “let’s go to the hallway and talk!” A lawyer whose been positively rude to you before is now your new best friend. What do you do? You are now a GAL and have been placed in a “position of the highest trust.”2
The scope of this material will review the use of the GAL in a family-law matter arising out of legal actions based primarily on Titles 10 and 43 as well as a Title 12 appointment as it relates to a Title 10 or 43 appointment.3 While there will be a brief discussion about the use of the GAL for adults in a Title 43 action, the focus will be representation of children. There will be no discussion of representation of children (except as it relates to the GAL’s role generally) in probate, in-need-of-treatment, real property, criminal, tort, guardianship, adoption, workers’ compensation or mental health matters. For the most part, there will be little discussion of the role as an attorney for the child.
THE POWER OF THE COURT AND ITS DUTY
In certain cases the appointment of the GAL is mandatory and in others, it is discretionary. Once a GAL is appointed, it is the job of the Court to assure that the GAL is adequately representing his/her charge.
Mandatory Appointment of a Child Representative or GAL
The trial court has no leeway concerning appointment of a GAL in a deprived action or in a parental-rights termination proceeding (AWOC adoption proceeding). Independent counsel must be appointed to represent children in proceedings where parental rights are being terminated whether it is a state or privately initiated petition.4 The court in SAW reasoned the purpose for the rule is that:
In a termination proceeding, if a child is not represented by independent counsel, the child is caught in the middle while each attorney argues from his client’s viewpoint. Although each side phrases arguments in terms of the child’s best interests, each attorney desires to prevail for his client, who is not the child. But when the court appoints an attorney for the child, testimony is presented and cross-examination is done by an advocate whose only interest is the welfare of the child.5
It is the duty of the trial court to raise the issue of child representation sua sponte in a parental-termination matter and to appoint a child representative.6 Anything less is clear error.7
While a parent is charged with the duty of the maintenance, protection and education of a child, in a deprived action or a parental-rights-termination proceeding, it is the state’s responsibility to assure a child is adequately represented pursuant to 10 O.S. §7003-3.7.8 In the deprived action or parental-rights-termination proceeding, there is no requirement that there be a show of indigence for the child to be represented.9
Pursuant to 10 O.S. §§7003-3.7 and 7303-3.1, in a deprived or juvenile action an attorney-for-the child appointment is mandatory and if requested by the child’s attorney, DHS, a licensed child-placing agency, a party to the action or the child him/herself, a guardian ad litem shall be appointed (unless a CASA10 volunteer is available).
The surprise in Oklahoma law (concerning mandatory appointments) is hidden in 10 O.S. §7002-1.2. If evidence in a juvenile action, or an action for divorce, separate maintenance action, an annulment, a custody proceeding or in a guardianship, indicates that a child has been subject to abuse or neglect, “the court shall appoint an attorney to represent the child for that proceeding and any related proceedings and as provided by (7003-3.7 ... shall appoint a guardian ad litem for the child.” (Emphasis added.)
It seems that whenever there is an emergency application alleging irreparable harm of a child — that if such an application is successful, there is a good likelihood the court should appoint an attorney for the child or a GAL.
Another surprise is hidden in Oklahoma Statutes Title 63. Pursuant to 63 O.S. §1-740.3, if an unemancipated minor does not want her parents notified of her desire for an abortion, then she can confidentially seek a judge’s approval for authorization to have the abortion performed. “If the judge determines that the pregnant unemancipated minor is mature and capable of giving informed consent to the proposed abortion” then the judge can authorize the procedure. If not, then the court must decide whether it would be in the pregnant minor’s best interest. In this type of proceeding, the court can choose on its own to appoint a guardian ad litem. The court must advise the pregnant minor that she has a right to court-appointed counsel and is required to appoint such counsel upon her request. In a regular civil action, if a minor party is not (otherwise represented in the action, the court shall appoint a guardian ad litem and make any other necessary orders to protect the minor.11 The “representative may sue or defend on behalf of the infant.... If an infant ... does not have a duly appointed representative he may sue by his next friend or by a guardian ad litem.” If a minor is expected to be an adverse party in a civil matter and pre-filing depositions are to be taken, the court shall appoint a guardian ad litem for the deposition prior to filing an action.12
Finally, pursuant to 43 O.S. §101 (Twelfth) if the ground for divorce is insanity for a period of five years, then the court shall appoint a guardian ad litem to represent the insane defendant, “at least ten (10) days before any decree is entered.”
When the Party is a Minor in a Family-Law Matter
“... it is the duty of a court of equity, under its general jurisdiction, to protect the interest of minors.”13
When dealing with a divorce or paternity matter involving a minor party to the action, any action taken against such minor can be voidable if he or she is not represented by a guardian ad litem.14 Just because there may be adult parties whose interests could be the same “as those of the infant” who are making the proper defense, this fact does not cure the need for a guardian ad litem.15
In Stephenson v. Stephenson,16 a defendant in a divorce action appealed the divorce court’s ruling because he was a minor who had not been provided a guardian ad litem. The court held that defendant was fully involved in the litigation and at most the orders entered were voidable because defendant filed a cross-petition when he filed his answer. The record showed that defendant was not prejudiced but instead his rights were “fully protected,” hence the trial court’s rulings would stand.
In Harjo v. Johnston,17 the syllabus by the court provides in pertinent part:
- It is the duty of courts to guard with jealous care the interests of minors in actions involving their rights. No presumption can be permitted against an infant, but, on the contrary, every presumption must be indulged in his favor, and a guardian ad litem or other person representing such minor must see to it that every question available is urged on behalf of said minor, and in case of failure to discharge this duty, it becomes the imperative duty of the court to see that the infant’s rights are protected.
- A guardian of a minor cannot, by commencing an action on behalf of his ward, thereafter enter into a compromise and settlement of such litigation and confess judgment against his ward, quieting title to the ward’s lands in the defendants or waive any of the substantial rights of the minor and a judgment entered by confession by the guardian does not create an estoppel against the minor thereafter asserting the invalidity of such judgment.18
Does the Court Have to Follow the GAL’s Recommendation?
The court does not have to follow the GAL’s recommendation. After Oklahoma statehood, the first GAL to represent a child in a divorce action was in the matter, Smith v. Williams.19 There, the parents of child take child from an orphanage at 2 to 3 months of age. At the end of six months, parents were either to adopt child or return her to the orphanage; however, that did not occur and instead parents kept child. Several years later, parents commenced divorce proceedings and mother requested custody of child. The orphanage intervened demanding the return of child to orphanage.
The trial court appointed a guardian ad litem. After a merit’s hearing, the trial court awarded custody of child to mother finding that arrangement to be in child’s best interests. The guardian ad litem appealed the court’s ruling. The guardian ad litem argued on appeal that mother’s “legal and moral obligation” was to return child to orphanage. The Supreme Court noted that during the years after parents kept child, orphanage had only a passing interest in child’s welfare and whereabouts. Mother was a good mother and not unfit. The court relied on the teaching that “the best interests of the child is always the paramount consideration.” In affirming the trial court’s custody decision, it further provided that to wrench a 6-year-old child from “the only mother she has ever known, and sending her back to the institution from whence she came, confused and heartbroken by the workings of a system she could never hope to understand, would be the height of inhumanity.”
In Kaiser v. Kaiser,20 the GAL (in this well-known relocation case) played an integral role and the trial court followed her recommendation that the child remain in Oklahoma due to the close ties with his father and that such a move ‘significantly reduced’ the amount of contact between father and son. Mother wanted to move to Washington, D.C., because she had a once-in-a-lifetime shot at a job with NASA. These parties had been through a lot of “protracted litigation” since their divorce in 1994. However, even in light of the guardian ad litem recommendation, the Oklahoma Supreme Court exacted a different legal standard than that known by the GAL when the investigation was performed. The standard for relocation was changed to the “fitness of the custodial parent and whether the child will be placed at risk of specific and real harm by reason of living with the custodial parent in the new location.”21
The Court’s Duty When the GAL Falls Down on the Job
The court has a duty to make sure that the guardian ad litem does his/her duty and when the trial court allows the guardian ad litem to shirk his/her responsibilities, then the trial court is failing its obligation to assure adequate representation.22
The court provides in pertinent part in Hamilton By and Through Hamilton v. Vaden the following:23
It is the duty of the courts sedulously to guard the rights of minors. No presumption against an infant is permitted; rather every presumption is indulged in his/her favor. A guardian ad litem must present every issue available on behalf of the child. If the guardian fails properly to discharge the duties of guardianship, the responsibility devolves upon the courts acting on behalf of the state to protect the best interest of the child. Courts cannot assume that parents will act effectively to protect the rights of their children; and it is neither reasonable nor realistic to rely upon parents (who may themselves be minors, or who may be ignorant, lethargic, or unconcerned) to bring an action within the time provided. It is equally unreasonable to expect a minor, whose parents fail timely to vindicate his/her legal rights, independently to seek out another adult willing to serve as next friend. To do so would ignore the realities of the family unit and the limitations of children. (Footnotes omitted.)
In an annulment matter, a guardian ad litem was appointed to represent the minor husband. The guardian ad litem filed an answer but did not appear for trial and default judgment was taken against the minor. The court addressed the guardian ad litem’s duty opining that the:
Defendant ... was a minor and entitled to the protection of guardian ad litem. The guardian ad litem appointed did not appear to be diligent in pursuing the duties of his trust, and when said cause was called for trial and nobody appeared to defend ... it was the duty of the trial judge on ascertaining that a guardian ad litem was appointed ... to ascertain what said guardian ad litem was doing and direct that he appear in court, and if said guardian ad litem was not properly representing the party for whom he was appointed, the court should then in the furtherance of justice appoint a guardian ad litem who would properly represent said minor.24
The court then asserted the rule of law that if a guardian ad litem fails to properly discharge his duty, then it is the duty of the court to protect the minor’s rights.25
In Posey v. State,26 the court recognized the need for a guardian ad litem to provide quality legal services. The court deemed there that the attorney acting on behalf of the guardian ad litem representing a defendant in a bastardy (paternity) proceeding must be given adequate time to prepare a defense; failure to allow such time is reversible error.27
In American Inv. Co. v. Brewer,28 the Supreme Court reversed the trial court when the guardian ad litem sold improperly the minor’s land in a probate action and the court held, “The guardian ad litem is the arm of the court extended to protect the minor ... and it is the duty of the court, whenever the necessity appears, to advise the guardian ad litem as to what steps to take and what pleadings to file.”
YOUR ROLE AS GAL
What is a GAL?
So you’ve been pulled into the vortex of a family-law matter and now you’re trying to figure out where you fit in the chaos. What is the definition of a GAL?29
Intertwined, undefined or confusing terms can lead to uncertainty regarding GAL representation. Statutes and legal dialogue across the country have not been uniform in describing child representatives, i.e. “attorney,” “child advocate,” “guardian ad litem,” “friend of the court,” “attorney ad litem,” “law guardian,” etc. This lack of precise definition can lead to both role confusion and role diffusion in child representation.
A GAL is not an attorney for the child or a CASA worker.30 While the role of the GAL (we’ll talk about that a little later) is outlined in several statutes, the GAL has one lonely definition in Oklahoma statutes and it is located in the Children’s Code:
“Guardian ad litem” means a person appointed by the court to protect the best interests of a child pursuant to the provisions of §7003-3.7 of this title in a particular case before the court...31
While 43 O.S. §107.3 doesn’t provide a definition per se, the guardian ad litem is expected to “objectively advocate on behalf of the child and act as an officer of the court to investigate all matters concerning the best interests of the child.”32 The Supreme Court has defined the GAL as an “arm of the court ... and makes his own investigation as the trial court’s agent.”33
What Family-Law Matters Can Result in a GAL Appointment?
The types of family-law cases which involve appointment of GALs beside Title 43 proceedings34 include consent to marriage; juvenile/ deprived (status, delinquent and abuse/ neglect proceedings); adoption,35 rights of majority, guardianship and third party custody actions as well as abortion-permission matters. The type of action from which your appointment arises may affect the scope, role and duties of your GAL appointment. Further, the type of action may impact the resources available for your use.
As for when the appointment may be made and whether it is discretionary or mandatory, see the discussion in Section III, The Power of the Court (supra).
The appointment, whether mandatory or discretionary, carries on through the appeal and an appointment can even be made during an appeal.36 In the case of In re Baby Girl L., the adoptive parents wanted to have new counsel appointed for the appeal. A GAL had been appointed at the trial level but the adoptive parents argued that the trial-court representation was “deficient.” The Supreme Court opined that additional counsel did not need to be appointed “[b]ecause the trial court counsel for the child is familiar with the trial court proceedings, and because of the short duration of time to prosecute and defend appellate proceedings, the appointment of trial counsel for a child will ordinarily include authority, either express or implied, to represent the child on appeal ... unless allowed to withdraw and substitute counsel [is] appointed.”
The All-Important Order
Understanding your role as a GAL under current Oklahoma law37 is in part defined by the appointing court. This order should be a separate order which clearly details your rights, responsibilities and duties as GAL.38
Since the GAL operates as an arm of the court, the GAL may be specially appointed for some purpose or may have broad powers as outlined by the pertinent statute. The GAL should inquire with the court about the specific reasons for the appointment so there is clear direction and understanding of your purpose and mission.39
If the court has not prepared an appointing order, you should prepare and present an order for signature. Unless the court has appointed you for a narrow and specific task, the order should be broad enough to cover a wide range of investigate tools.40 Some examples of what to put in issues to cover in an appointing order include:
- Clarity of role
- officer of court/advocate for child
- party in case i.e. provided copy of all pleadings, able to plead, perform discovery, etc.
- when to report to court
- attorney/client privilege - does it exist or not (maintaining confidentiality differs from attorney-client privilege)
- payment of fees (how it is allocated between the parties)
- Ability to interview child and obtain all records,41 i.e. school, medical, psychological, DHS, Court (juvenile), police, etc.
- Powers of GAL
- hire professionals — mental health, doctors, PI, etc.
- ability to perform discovery (although §107.3 doesn’t allow discovery to be performed on the GAL)
- ability to examine, cross examine, call witnesses
- involvement in settlements
- General catch-all powers
THE BEST INTEREST STANDARD
In Oklahoma guardians ad litem are expected to represent the best interest of the children.42 In fact, “the best interests of the child is always the paramount consideration.”43 What is considered the “best interest of the child?”
A few years ago in a guardianship case, the appellate court opined:
....A parent’s fitness is a component of best interests. The best interests of the child test in Anglo-American legal systems considers a number of factors:
- the desires of the child;
- the emotional and physical need of the child now and in the future;
- the emotional and physical danger to the child now and in the future;
- the parental abilities of the individuals seeking custody;
- the programs available to assist these individuals to promote the best interest of the child;
- the plans for the child by these individuals or by the agency seeking custody;
- the stability of the home or proposed placement;
- the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
- any excuse for the acts or omissions of the parent.44
For the ethics of promoting the best-interest standard versus the wishes of the child, see ethics discussion below.
So, who pays the freight? If it is a §107.3 appointment, then the GAL’s costs are allocated between the parties. However, what if it is a different type of action (such as an appointment under Title 12)? What if the child intervenes in a paternity case?
In Rogers v. Rogers,45 daughter appealed the trial court’s ruling denying her attorney fees on the basis that there is no statutory authority for awarding them. Daughter pursued her attorney-fee quest based upon 10 O.S. §89.3 (old paternity statute based upon prevailing party standard) and 43 O.S. §110. The matter arose out of daughter’s intervening motion to terminate stepfather’s parental rights in the parents’ divorce case (mother and stepfather married a couple of months before daughter’s birth but stepfather was not the father; the recital in the parties’ divorce decree provided that stepfather was the father and after that time there was post-decree squabbling). Stepfather’s rights were ultimately terminated and daughter sought attorney fees.
The appellate court affirmed the trial court’s denial of fees, opining the American rule concerning fees applied (none unless specific statute providing for them) and there was no statutory basis for fees. Interestingly enough, the court did not cite or follow the Oklahoma Supreme Court decision, Hoffman v. Morgan,46 which provides that although the expenses of a guardian ad litem may not be mentioned by statute, are allowable as equitable litigation expenses.47
In an equitable quiet-title action where a guardian ad litem had to be appointed for a minor the court provided: “The appointment of a guardian ad litem for the infant’s protection is required by our statute.48 The guardian ad litem becomes an officer of the court and is charged with the duty of protecting the rights of the infant for the state in its roll of parens patriae. The right of the court to award a reasonable fee to the guardian ad litem is implied from the right and duty to appoint, and from the necessity of insuring the ward adequate legal protection, and the fee may be properly taxed as costs, for it is an expenditure necessary to the performance of the judicial function.“49
However, it should be noted that the fees sought in the first-cited case, Rogers, was not for a guardian ad litem appointment.
In a parental-rights termination matter, the payment of fees is addressed in Matter of Adoption of BRB.50 Matter of Christopher W.51 is the seminal case addressing payment for a child’s representation by a guardian ad litem fee in a parental rights termination matter or a deprived action. There, the court held that in deprived and parental-rights termination matters the state is ultimately saddled with burden of GAL fee payment. The court further noted that whenever there is an appointment pursuant to 10 O.S. §24 the state foots the bill.
In regards to §24, it was revamped as part of the “Investing in Stronger Oklahoma Families Act.” Basically, it provides that the court shall appoint counsel for a minor or a minor’s parent or relative acting as custodian (there are further criteria to be met for a nonparent custodian) if it is found that the minor or minor’s parent is desirous of counsel and is indigent. There are no guidelines on when this provision is to be applied.
Section 24.A.2. provides that when it becomes clear that there is a “conflict of interest” between ”a parent or legal guardian and a child so that one attorney could not properly represent both” the court may appoint counsel in addition to the lawyer already provided for the parent or legal guardian. The public defender takes on this role when the county has public defenders.
In juvenile and criminal actions involving minor defendants as well as juvenile mental health and in-need-of-supervision proceedings, the attorney representing the minor gets paid for his services either at the rate of $100 or $500, if it is trial. Don’t spend it all in one place!
The Legislature implemented 10 O.S.Supp.1996 §24.1, which seems to provide that “volunteer attorneys” will provide representation for children in whatever legal situation they may find themselves in and submit their claims pursuant to the Indigent Defense Act (22 O.S. §1355.8(H)).
What keeps a good GAL up at night is making the right decision — not because he or she might be sued later but because no one wants to put a child in harm’s way (except for the sadistic GAL in the Smith orphanage case earlier discussed). The reality is while most private GALs work for a substantially reduced hourly rate, no-charge for time and usually end up with a hefty accounts receivable, there is still the fear in the back of their mind: what if I make the wrong decision and I get sued later?
In this short discussion, remember what we were taught in law school an ethical violation is not necessarily malpractice and vice versa. In Oklahoma the Oklahoma Supreme Court promulgated a one paragraph opinion in 2000. The court opined:
A court-appointed guardian ad litem in a custody matter is immune from suit by the ward or any other party for all acts arising out of or relating to the discharge of his duties as a guardian ad litem. Kahre v. Kahre, 1995 OK 133, 916 P.2d 1355; Kirschstein v. Haynes, 1990 OK 8, 788 P.2d 941.52
That simple statement says it all — at least for Oklahoma at this time. However, nationwide the cloak of immunity is being shredded one thread at a time.53
The case of Collins v. Tabet54 would chill any privately-appointed GAL. An experienced medical malpractice attorney was appointed as a guardian ad litem for a child in a medical malpractice case to aid in managing the trust. The court approved the settlement based upon the guardian ad litem’s approval that the settlement was fair. Eventually the parents sued the guardian ad litem along with the lawyer and a jury found that the GAL and lawyer had been negligent. The GAL and lawyer appealed; the appellate court deemed that there was substantial evidence to support the verdict. However, as to the GAL, the New Mexico Supreme Court addressing the certified question from the federal court, took a “functionary approach” holding that a GAL “is absolutely immune from liability for his or her actions taken” if working as an arm of the court. If the GAL isn’t a functionary of the court but an advocate for the child, then ordinary principles of malpractice govern.55
In Collins, the New Mexico Supreme Court opined though that the GAL is ”more than an adjunct to the court. He is the attorney for the children and their interests. He must perform his duties in accordance with the standards of professional responsibility adopted by this court. Nominal representation that fails to assure that children are treated as parties to the action is insufficient and constitutes a breach of the duties of professional responsibility.” Ultimately, the court held that a privately retained GAL may not be “entitled to quasi-judicial immunity.” The question of whether the GAL was only a GAL or whether he stepped out of that role into that of advocate when making recommendations to the court is one of fact. The matter was remanded to the trial court.
There are other cases that are more protective of the GAL. For example, Kurzawa v. State of Michigan,56 where the court held that a GAL “must ... be able to function without the worry of possible later harassment and intimidation from dissatisfied parents. ... A failure to grant [absolute] immunity would hamper the duties of a guardian ad litem I his role as advocate for the child in judicial proceedings.”
In Myers et al. v. Scott County et al.57, where the questioning by a GAL and other court-appointed professionals was “imperfect” in a child sexual abuse investigation but absolute immunity was held to be appropriate since the GAL was performing a quasi-judicial function. Another Minnesota case (from a different court), Tindell v. Rogosheske,58 involved a GAL participating on behalf of the child in a settlement agreement with the state. Mother brought suit against the GAL alleging that he negligently failed to perform his GAL duties by conducting an appropriate investigation into whether the settlement was in the child’s best interest. The court held that “guardians ad litem frequently must rely on incomplete facts and base their advice on a variety of legal and non-legal factors, some of which may conflict.59 Removing immunity would impair the judicial process by discouraging guardians ad litem from advising settlement, and the energies of guardians ad litem would be diverted toward anticipating lawsuits rather than protecting the true interests of children.
In Short v. Short60 the court noted the functional differences between the GAL and attorney for the child. The court deemed that the GAL was immune from suit, reasoning:
... the need for an independent guardian ad litem is particularly compelling in custody disputes. Often, parents are pitted against one another in an intensely personal and militant clash. Innocent children may be pawns in the conflict. To safeguard the best interests of the children, however, the guardian’s judgment must remain impartial, unaltered by the intimidating wrath and litigious penchant of disgruntled parents. Fear of liability to one of the parents can warp judgment that is crucial to vigilant loyalty for what is best for the child; the guardian’s focus must not be diverted to appeasement of antagonistic parents.
There is a countervailing public policy concern of preserving guardian ad litem accountability. However, there are judicial mechanisms in place to prevent abuse, misconduct and irresponsibility. First, the immunity attaches only to conduct within the scope of a guardian ad litem’s duties. Second, the appointing court oversees the guardian ad litem’s discharge of those duties, with the power of removal. Third, parents can move the court for termination of the guardian. Fourth; [sic] the court is not bound by and need not accept the recommendations of the guardian. The court can modify or reject the recommendations as it deems appropriate. Parents, of course, may be as involved in the process as they wish. Finally, determinations adopted by an appointing court are subject to judicial review. These procedural safeguards make threat of civil liability unnecessary.
In Oklahoma the standard for the GAL concerning settlement is murky. In Lambert v. Hill,61 the court recognized that as long as the court examined the matter fully and it appears that the settlement is in the best interest of the child, then the settlement entered into on behalf of the minor by the GAL and the attorney appointed to represent the child’s interests will be approved.
In Hamilton by and through Hamilton v. Vaden,62 the federal court certified questions to the Oklahoma Supreme Court in a wrongful death action. The Oklahoma Supreme Court held that a “minor’s rights belong to the minor and that barring a full determination on the merits approved by the court, the minor is entitled to bring his/her own cause of action upon reaching adulthood. In the interim, the guardian ad litem may not do anything to impair or to prejudice the minor rights without court approval.” In regards to the actions a GAL may take, the GAL has the right to sue and take action on behalf of the child after his/her appointment but does not have the obligation to sue.63 Title 12 O.S. (2017 though does not undermine the court’s authority “to dismiss an action if it is determined that an action is not being conducted in the child’s best interest.”64
The law and ethics swirling around the GAL is dynamic and changing. Most family lawyers love their GAL work and the daunting task of child representation adds texture to their practices. The key goal when you receive a GAL appointment: Be a trustworthy guardian and do no harm.
1. If you are requesting the GAL appointment, then your motion does not require an accompanying brief or list of authorities. Rule 4(c)(4), 12 O.S., Ch. 2, App. Incidentally, the person requesting a guardian ad litem on behalf of the child must have standing to be able to request the appointment. In re Adoption of IDG, 2002 OK CIV APP 22, 42 P.3d 303. Pursuant to 15 O.S. §13 children — who are nonparties in their parents’ divorce action — do not have the right to contract and select their own representation; that is the court’s purview. Wallis v. Wallis, 2003 OK CIV APP 77, 78 P.3d 562.
2. Collins v. Tabet, 111 NM 391, 400, 806 P.2d 40 (1991).
3. There will be a discussion of one particular type of appointment arising out of a Title 63 request by pregnant minor that will be briefly addressed.
4. Matter of Adoption of BRB, 1995 OK 121, 905 P.2d 807, In re Adoption of FRF, 1994 OK CIV APP 9, 870 P.2d 799, and Matter of Guardianship of SAW, 1993 OK 95, 856 P.2d 286.
5. SAW, 856 P.2d at 289, citing Matter of TMH, 1980 OK 92, 613 P.2d 468, 471
6. In re Adoption of FRF, 1994 OK CIV APP 9, 870 P.2d 799
8. Matter of Christopher W., 1980 OK 186, 626 P.2d 1320, 1322; see also, Wallis v. Wallis, 2003 OK CIV APP 77, 78 P.3d 562 (pursuant to 15 O.S. §13 children — who are nonparties in their parents’ divorce action — do not have the right to contract and select their own representation; that is the court’s purview).
10. Court Appointed Special Advocate.
11. 12 O.S. §2017(C)
12. 12 O.S. §3227(A)(2)
13. Wiley v. Lewis, 1931 OK 611, 4 P.2d 7, 15
14. Allen v. Hickman, 1963 OK 156, 383 P.2d 676, 679. But see, Connelly v. Connelly, 1914 OK 401, 142 P. 1113, 1114 (failure to appoint a guardian ad litem for a minor party is not fundamentally fatal; error was addressed for the first time on appeal and the court found no error for failure to appoint a guardian ad litem.)
15. Id. See also, Stephens v. Stephens, 1957 OK 110, 311 P.2d 241 (a guardian ad litem must be appointed on behalf of minor defendant in divorce action); and Woods v. State, 1952 OK 143, 249 P.2d 99, Cudd v. State, 1932 OK 600, 14 P.2d 406, Moore v. State, 1927 OK 189, 257 P. 1100, Jennings v. State, 1927 OK 132, 256 P. 31, Posey v. State, 127 OK 128, 255 P. 697, and Halton v. State, 1924 OK 501, 225 P. 894, 895 (a guardian ad litem must be appointed on behalf of a minor defendant in a paternity action; in Jennings and Halton, the court held that failure to do so makes such judgment against the minor defendant void.)
16. 1945 OK 159, 167 P.2d 63
17. 1940 OK 152, 104 P.2d 985
18. See also, Tanner v. Schultz, 1924 OK 119, 223 P. 174, 175, and Bolling v. Campbell, 1912 OK 581, 128 P. 1091, 1092.
19. 1938 OK 299, 78 P.2d 808
20. 2001 OK 30, 23 P.3d 278
21. Of course, we all know what happened here ... The Oklahoma Legislature in all of its wisdom enacted 43 O.S. §112.3. Which poses the question, does the GAL now demand in its parens patriae role clarification of the statute in conjunction with the Kaiser/Abbott cases and their progeny? If so, from whom, the court for whom it works as an arm pursuant to Kahre? Can the GAL argue the constitutionality issues from the child’s perspective? What are those, if any?
22. Mosier v. Aspinwall, 1931 OK 345, 1 P.2d 633, 634. See also, In re Sanders’ Estate, 1917 OK 468, 168 P. 197, 198
23. 1986 OK 36, 721 P.2d 412, 417
24. Mosier v. Aspinwall, 1931 OK 345, 1 P.2d 633, 634
25. Mosier, 1 P.2d at 635
26. 1927 OK 128, 255 P. 697, 699
28. 1918 OK 741, 181 P. 294, 296
29. Nowhere in Oklahoma law does it define the role and responsibility of a GAL. What may be outlined in one type of case is not necessarily applicable in another type of case. The GAL and the niche it fills in Oklahoma law is addressed in all types of matters and the rules and imperatives rely on cases that spring out of many different manner of legal proceedings.
Another problem is whether the GAL is supposed to be an attorney or not. In some cases, the GAL referred to in the case is an attorney and in other cases, he/she is not.
It seems to be the premise that the teachings about the conduct of a GAL (whether attorney or not) in any type matter is the same no matter what the type of case is involved. However, in Bradley v. Jacobsen, 1937 OK 319, 68 P.2d 511, the court recognized the difference between an attorney hired by a prochein ami (guardian ad litem) acts as an attorney in the case and is answerable to the minor. The attorney in that matter “had a right to satisfy the judgment“ in that matter. The court further held that “[t]o insure the orderly transaction of lawsuits for the benefit of minors, as in other cases, attorneys must be clothed with some discretion and power ....“ In that case it was noted that the attorney acted on behalf of the minor not on behalf of the guardian ad litem who was supposed to be looking out for the minor’s interests.
If there is a guardian who is protecting the minor in a legal matter, there is no need for a guardian ad litem too. Johnson v. Thornburgh, 1926 OK 886, 254 P. 53, 56.
30. A CASA worker means:
a responsible adult who has been trained and is supervised by a court-appointed special advocate program recognized by the court, and who has volunteered to be available for appointment by the court to serve as an officer of the court as a guardian ad litem, pursuant to the provisions of §7003-3.7 of this title, to represent the best interests of any deprived child or child alleged to be deprived over whom the district court exercises jurisdiction, until discharged by the court ...
10 O.S. §7001-1.3(10).
31. 10 O.S. §7001-1.3(24)
32. 43 O.S. §107.3(A)(2)
33. Kahre v. Kahre, 1995 OK 133, ¶¶30 and 33, 916 P.2d 1355; see also, American Inv. Co. v. Brewer, 1918 OK 741, 181 P. 294, 296
34. The phrase “Title 43 proceedings” means divorce, separate maintenance and child-contact proceedings (such as paternity, which originates out of Title 10 but by statute relies heavily on guidance in Title 43) an includes such things as initial custody determinations; post decree custody or visitation modifications; contempt proceedings (e.g. visitation denials); habeas corpus actions (e.g. abductions); and could include protective orders. The writers have not been involved in any VPO cases involving GALs; nevertheless, they certainly can imagine fact patterns where an appointment may be appropriate.
35. The trial court’s failure to appoint a GAL in the adoption and related visitation action was not deemed to be fundamental error because it was not a parental-rights-termination proceeding, which commands appointment of an attorney for the child. In re Adoption of MCD, 2001 OK CIV APP 27, ¶34, 42 P.3d 873.
36. In re Baby Girl L., 2002 OK 9, ¶47, 51 P.3d 544, Tisdale v. Wheeler Bros Grain Co., Inc., 1979 OK 94, 599 P.2d 1104, 1106, and Okl.Sup.Ct. Rule 1.37, 12 O.S., Ch. 15, App.
37. 43 O.S. §107.3(A) (1997) states: “In any proceeding for the disposition of children where custody of minor children is contested by any party, the court may appoint an attorney at law as guardian ad litem on the court’s motion or upon application of any party to appear for and represent the minor children....”
38. An example of a GAL order is attached hereto as Exhibit “A“.
39. For example, the court may simply want you to monitor whether or not a parent can properly tend to the needs of a child’s specific medical condition or investigate allegations of alienation or visitation sabotage. Or, the court may need a full investigation as to which one is the best custody placement for the child, etc.
By understanding the judge’s perspective and questions, a GAL is better equipped to complete the mission successfully and facilitate resolution of issues. In this regard, the GAL is similar to a mediator. When the GAL has had several years experience in domestic practice and understands the court’s specific concerns and questions—that information and knowledge can be used to assist parents see where they may be unreasonable in their actions and positions. Conversely, when a party is given specific direction from the GAL of what the judge is concerned about and chooses not to make a correction in behavior or conduct, it clearly defines attitudes and willingness of a party to act in the child’s best interest. So, the GAL activities can either clarify lines of distinctions between the parties or cause them to find middle ground to resolve issues.
40 Examples of Orders Appointing Guardians Ad Litem are attached as Appendix A through D. Appendix C and D have been developed and used in practice.
41. Title 10 O.S. §7005-1.7 “declares” that “receipt of confidential information by persons authorized to receive” that information is (essential to the responsibility of the state to care for and protect its children. Pursuant to the federal Child Abuse Prevention and Treatment Act (42 USC (5101 et seq.), which provides for expanded disclosure and sharing of records and reports with persons who have a need to know in order to protect children from child abuse, this enactment gives power to the Commission for Human Services [DHS?] to promulgate rules which provide for disclosure of all information to persons and entities authorized by this provision (which includes “any other person ... specifically authorized by law in order to carry out their responsibilities under law to provides services to children to protect children from abuse and neglect.”
Pursuant to 10 O.S.§7005-1.4(A)(1&2) DHS records may be inspected without benefit of court order by a GAL and if the court has ordered a DHS home study in a custody, divorce or guardianship proceeding, DHS “may limit disclosure in the home study to summaries or to information directly related to the purpose of such disclosure.”
Pursuant to 10 O.S. §7005-1.3 without benefit of a court order a GAL may review juvenile records. In regards to other juvenile records, 10 O.S. §7303-3.1(D) provides that a GAL who represents an alleged delinquent is entitled to access to the court file and all records and reports “relevant to the case and to any records and reports of examination of the child’s parent or other custodian ....” Title 10 O.S. §§7307-1.4 & 1.5 allow a GAL to review juvenile records and JuvenileJustice agency records of the child it represents without a court order.
42. See Kahre, generally
43. Smith v. Williams, 1938 OK 299, 78 P.2d 808
44. In re Guardianship of HDB,2001 OK CIV APP 147, ¶15, 38 P.3d 252.
45. 1999 OK CIV APP 123, 994 P.2d 102
46. 1952 OK 199, 245 P.2d 67, 70
47. See also, Fleet v. Sanguine, Ltd., 1993 OK 76, 854 P.2d 892, n. 63 (“In an equitable setting costs should not be so rigidly confined to specifically enumerated statutory allowances as to exclude any other necessary expenditures. Allowance of equitable costs rests in the discretion of the chancellor.” (Emphases theirs. Footnotes omitted.); and Holleyman v. Holleyman, 2003 OK 48, ¶5 Supplemental Opinion, 78 P.3d 921, 942 (“Costs are not expenses.“Emphasis theirs); see also, Rand v. Nash, 174 Okl. 525, 51 P.2d 296, 297-298 (1935).
48. 12 O.S. 1951 §228 (renumbered 12 O.S. §2017(C))
49. Hoffman v. Morgan, 1952 OK 199, 245 P.2d 67, 70
50. 1995 OK 121, 905 P.2d 807, 811
51. 1980 OK 186, 626 P.2d 1320
52. Perigo v. Wiseman, 2000 OK 67, 11 P.3d 217
53. The authors are grateful to the research of the countrywide trend and non-Oklahoma caselaw contributed by Donelle Ratheal concerning the discussion of GAL immunity.
54. 111 NM 391, 806 P.2d 40 (1991)
55. See also, Harlow v. Fitzgerald, 457 U.S. 800, 810-11 (1982)(“Our cases have followed a ‘functional’ approach to immunity law. We have recognized that the judicial, prosecutorial and legislative functions require absolute immunity.”)
56. 732 F.2d 1456, 1458 (6th Cir. 1984)
57. 810 F.2d 1437 (8th Cir. 1987)
58. 421 N.W.2d 340 (Minn.Ct.App. 1988)
59. See Minnesota Judges Ass’n, Guidelines for Guardians Ad Litem 2 (1986)
60. 730 F.Supp. 1037, 1039 (U.S.Dist.Ct. Colo. 1990)
61. 1937 OK 331, 73 P.2d 124, 127
62. 1986 OK 36, 721 P.2d 412, 414
63. Hamilton, 721 P.2d at 416
64. Hamilton, 721 P.2d at 416
About the Authors
Julie Simmons Rivers is an Oklahoma City solo practitioner, practicing primarily in family and appellate law. She is active in the OBA Family Law Section, serving as 2001 chairperson and receiving the section’s 1999 Outstanding Family Lawyer award. She is also active in Lawyers Helping Lawyers. She is a 1992 graduate of the OU College of Law.
Noel K. Tucker is a sole practitioner in common law partnership with her spouse, Phil, at Tucker Law Firm in Edmond. She is a 1996 graduate of OCU School of Law, including a semester at Queens College, Oxford University in Oxford, England. Her practice emphasizes adoption law and family law, where she has held several leadership positions (including former chair) with the OBA Family Law Section. She has also spoken on numerous family law issues.
Phillip J. Tucker is a sole practitioner in common law partnership with his spouse, Noel, at Tucker Law Firm in Edmond. His practice emphasizes adoption law, guardianship, general civil litigation and family law, where he has held several leadership positions (including former Chair) with the OBA Family Law Section. He is also a mediator. He is a 1983 graduate of OCU School of Law.
Originally published in the Oklahoma Bar Journal -- Feb.10, 2007 -- Vol.78, No. 5