Custody can be the thorniest aspect of any Utah divorce case. Even when a couple is generally amicable in unwinding their relationship, there may be a great deal of tension around how custody and parenting time are configured. Each parent may think they truly understand what is in their child's best interests, yet their positions are widely divergent. How is a judge, who has limited time to evaluate this most important situation, to come up with an answer that works best for the child? He or she may rely on information from a custody evaluator or private guardian ad litem. In this blog post, we will explore the difference between custody evaluators and private guardians ad litem, and talk about when each may be appropriate in a Utah custody matter.
In most legal matters, the individuals involved have the opportunity to voice their needs, either directly or through their attorneys. In a divorce with children, each parent can convey their positions, but a child, who is deeply affected, usually can't speak for him- or herself. While a child may be asked to testify in a divorce or custody case, this very rarely happens. It is generally considered to be damaging to a child for him or her to be put in the middle of a dispute between the parents. A private guardian ad litem or custody evaluator can put the child's needs before the court without subjecting the child to the trauma of testifying or feeling like he or she must choose between parents.
A guardian ad litem (GAL) is a person who represents a child's interest in a lawsuit. In Utah, there is a state Office of Guardian ad Litem which employs attorneys to represent the best interests of children and teens in cases of dependency and alleged neglect or abuse in Utah's juvenile courts. They perform an important service, but for the purposes of this blog post, we are discussing only private GALs.
Private GALs are also attorneys. They interact with children involved in their parents' custody matter throughout the legal case. Private GALs are appointed in custody actions in district court, but not in every custody action. They are more likely to be appointed if custody or parent-time are strongly contested issues in the case.
A judge may appoint a private GAL if one or both parents ask for one. The court will specify in the order appointing the GAL what issues the GAL is to help resolve. The GAL is paid for by one or both (usually both) of the parents. While a private GAL can be helpful in a case, their services can also be costly—and you have to pay your share whether or not you like what the GAL has to say. Fees usually range in the area of $150 to $250 per hour. There is a roster of court-approved private GALs; the parties can agree to use a certain private GAL, or the court can appoint whoever volunteers to take the case when a request is sent to those on the private GAL roster.
The private GAL does not make a recommendation that the court take a certain action. Rather, the GAL reports to the court about what he or she feels is in the child's best interests, based on their interactions. The court is not obligated to issue a custody or parenting time order that goes along with the private GAL's report. As a practical matter, though, the court usually sides with the GAL, who has actually taken the time to meet with the child and discern his or her wishes and concerns.
A custody evaluator is a trained professional who prepares an extensive report that is given to the court to help the judge make decisions about parent-time and custody. The role of a custody evaluator is more expansive than that of a private GAL; the evaluator assess each of the parties' ability to parent and the various needs of the child or children. The court may specify in the order appointing the custody evaluator the items and issues the evaluator should consider. Typically, however, the custody evaluator assesses the parents' fitness and relationships with the child or children through the lens of the "best interests of the child" set forth in Utah statute.
Unlike private GALs, custody evaluators are not attorneys. They are trained mental health professionals, such as a licensed clinical social worker, psychologist, psychiatrist, or a licensed marriage and family therapist. The custody evaluator is a court-appointed expert. There is generally only one custody evaluator. If one parent lives outside of the state of Utah, the custody evaluator will likely travel to that state to perform a home visit. The custody evaluator, after collecting extensive data about the parties and their parenting, will formulate a report that is intended to be used at trial. As with a GAL , one or both parties are responsible for the cost of a custody evaluator.
A private GAL or a custody evaluator may each have a role in a contested custody or parent-time matter. Your family law attorney is in the best position to advise you which (if either) is most appropriate for your case, and how to prepare for interacting with them.
If you have further questions about the roles of private GALs and custody evaluators in Utah custody and parent-time cases, we invite you to contact our law office to schedule a consultation.
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