GUARDIANS AD LITEM SHOULD BE JUDGED ACCORDING TO DAUBERT

Family law situations often call for the appointment of lawyers to serve as guardians ad litem (“guardians”). Sometimes the judge is required by statute or case law to appoint a guardian for children. Other times, judges choose to appoint guardians to assist the Court in resolving issues such as custody disputes. Guardians receive approximately 12 hours of training before they are accepted for inclusion on the Supreme Court's “approved list.” This training is obviously limited and does not begin to scratch the surface of issues such as psychology of parenting, emotional pathology, disease, abuse and neglect, and child development. Moreover, there is little, if any, training in such areas in law schools. Nonetheless, guardians are called upon every day to serve in the critically important role of making recommendations to judges for the protection of children.

The recent decision of Jones v. Jones, NO. 2008-CA-00675-COA (Decided December 15, 2009) is illustrative of some of the defects in the guardian ad litem system. In that case, a guardian ad litem was appointed to make a recommendation to the chancellor regarding custody and visitation. The guardian ad litem recommended that the father receive unsupervised visitation and the chancellor accepted this recommendation. (Chancellors are supposed to accept guardian’s recommendations unless they make specific findings as to why they should not). However, the Court of Appeals reversed the Chancellor in Jones where there was record that the father had engaged in inappropriate bathing rituals, forced older children to bathe with him nude, and that a female child had developed unexplained rashes in her private parts after visits with her father. The record reflected that the guardian made no contact with an abuse expert, nor sought any expert examination of the children before making a recommendation that no abuse occurred. The Court found that the guardian’s recommendation lacked any factual basis. The Court then observed that guardian ad litem qualifications should be based upon the principles set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Without going into the details of the United State Supreme Court’s decision in Daubert, which dealt with the qualifications of experts, the upshot of this decision is that guardians ad litem should not be permitted to express opinions upon which they have no expertise. The opinion suggests that when guardians are faced with issues requiring expertise, they should consult with those who have it. Such a requirement could drive the costs of guardians up as they consult with experts. Such a requirement could also result in guardians being reluctant to make recommendations. However, the soundness of requiring guardians to consult with experts where expertise is required cannot be disputed and should be adhered to.