The Legislature introduced Senate Bill 50 on Jan. 1, 2017. The bill was passed through the House and Senate without changes and was approved by the governor on April 11, 2017. The bill revised the statute dealing with guardian ad litem reports and the role of the guardian ad litem in family law cases. The revised statute, which took effect Nov. 1, 2017, can be found at 43 O.S. §107.3.1

GAL RECOMMENDATIONS BEFORE AND AFTER NOV. 1, 2017
The revised statute changed a small, but significant, portion of 43 O.S. §107.3 (2)(d).2 The revised statute removed the language which required the guardian ad litem to include conclusions and recommendations in the guardian ad litem report and clarified that the determination of what is in the best interest of the child is solely up to the judge. The superseded and current portions of the statute are listed below for ease of comparison.

[The guardian ad litem shall] present written reports to the parties and court prior to trial or at any other time as specified by the court on the best interests of the child that include conclusions and recommendations and the facts upon which they are based.3

[The guardian ad litem shall] present written factual reports to the parties and court prior to trial or at any other time as specified by the court on the best interests of the child, which determination is solely the decision of the court.4

MAY GAL REPORTS INCLUDE CONCLUSIONS AND RECOMMENDATIONS AFTER NOV. 1, 2017
While the guardian ad litem is no longer required to include conclusions and recommendations, there are differing opinions about whether a guardian ad litem report may contain that information.

Attorneys who believe the revised statute prohibits conclusions and recommendations in a guardian ad litem report argue the removal of the language requiring the inclusion along with the added language that the determination of the best interests of the child is solely the judge’s decision, make it clear that the legislative intent was to prohibit recommendations.

Attorneys who believe the revised statute does not prohibit conclusions and recommendations in a guardian ad litem report argue the Legislature would have added the language “shall not include conclusions and recommendations” if it intended to prohibit recommendations. These attorneys believe the revised statute simply removes the requirement to include recommendations. These attorneys note the determination of the child’s best interests has always been the judge’s sole decision.

After speaking with various attorneys around the state, it appears many judges are interpreting the revised statute as allowing conclusions and recommendations in a guardian ad litem report. Some judges always want the recommendations included as an aid to the court while other judges leave the decision up to the attorneys. Still other judges interpret the revised statute as prohibiting the inclusion of recommendations in a guardian ad litem report. This issue has not been appealed and so it is unknown how the Oklahoma Appellate Court and Oklahoma Supreme Court will view the revised statute.

SUGGESTED BEST PRACTICES
The guardian ad litem should seek instruction from the judge regarding whether conclusions and recommendations should be included in the guardian ad litem report. The Order Appointing Guardian Ad Litem should contain a clear statement regarding conclusions and recommendations in the report. If the judge leaves it up to the attorneys, the guardian ad litem should ask both attorneys in writing if the attorneys want conclusions and recommendations included in the guardian ad litem report. If the attorneys are unable to come to an agreement the issue should be presented to the judge. The following is an example of language that could be included in the Order Appointing Guardian Ad Litem.

Pursuant to 43 O.S. §107.3 the guardian ad litem shall provide a written factual report to the court which shall include recommendations and conclusions. The court may consider the report of the guardian ad litem; however, the determination as to the best interest of the child is solely the decision of the court; or

Pursuant to 43 O.S. §107.3, the guardian ad litem shall provide a written factual report to the court which shall not include recommendations and conclusions. The court may consider the report of the guardian ad litem; however, the determination as to the best interest of the child is solely the decision of the court.

CONCLUSION
The revisions to 43 O.S. §107.3(2)(d)5 removed the requirement that a guardian ad litem report include conclusions and recommendations and clarified that only the judge can decide what is in the child’s best interests. There appears to be a difference of opinion regarding whether the revised statute actually prohibits the inclusion of recommendations and conclusions. A best practice is to seek guidance from the appointed judge and to include language in the Order Appointing Guardian Ad Litem setting forth whether the guardian ad litem report will include conclusions and recommendations.

ABOUT THE AUTHOR
Michelle K. Smith is a solo practitioner in Oklahoma City. She limits her practice to family law. She graduated magna cum laude from the OCU School of Law in 2007. Ms. Smith served as the OBA Family Law Section chair in 2015.

1. Okla. Stat. Ann. 107.3, effective Nov. 1, 2017.
2. 43 Okla. Stat. Ann. 107.3(2)(d), effective Nov. 1, 2017.
3. 43 Okla. Stat. Ann. 107.3(2)(d), superseded Nov. 1, 2017.
4. 43 Okla. Stat. Ann. 107.3(2)(d), effective Nov. 1, 2017.
5. Id.

Originally published in the Oklahoma Bar Journal -- OBJ 89 pg. 22 (March 2018)