In any paternity case or divorce involving child custody, there is the potential that a third-party will be appointed to assist the court or the parties in making decisions that benefit the children.  The three most common appointees are parenting coordinators, guardians ad litem, and social investigators.  This article presents a very brief overview of the differences between these positions, including their respective strengths and weaknesses.

Parenting Coordinators

A parenting coordinator is appointed by the court or by consent of the parents to “provide a child-focused alternative dispute resolution process.”  The parenting coordinator does this by educating the parents and making recommendations to them in an effort to amicably resolve child-related disputes.  The parenting coordinator typically cannot force the parents to take a recommended course of action except in cases where the parents have agreed in advance to confer this power on the coordinator.  § 61.125(1), Fla. Stat.

Generally, all communications involving the parents and the parenting coordinator are confidential unless the parties agree otherwise in writing or unless the coordinator has reasonable cause to believe that a child is being abused, neglected or is in danger of being wrongfully removed from the court’s jurisdiction.  A parenting coordinator may testify in order to advise the court of the status of the coordination process so long as he or she does not reveal the contents of any confidential communications.  § 61.125(7)-(8). Fla. Stat.

Parenting coordinators are most helpful in situations where both parents sincerely want to make decisions that are in their children’s best interest, but where they may be unable to do so due to their personal conflicts.  Parenting coordination works only where parents are able and willing to compromise and rationally discuss issues involving their children.  A parenting coordinator cannot force a party to act either directly or by threat of repercussions from the judge given the confidentiality requirements noted above.  Despite this, parenting coordination is often preferable to the alternatives below given that it is relatively noninvasive and that the children almost always will be uninvolved in the process.

Guardians Ad Litem

A guardian ad litem is appointed by the court to act as “next friend of the child, investigator or evaluator, [but] not as attorney or advocate.”  § 61.401, Fla. Stat.  The guardian is duty bound to advance the best interests of the child by, among other things: (1) investigating the parents’ allegations; (2) interviewing witnesses including the child and the parents; (3) recommending whether the court should order expert examinations of the child or the parents; and, (4) making other recommendations to the court as to the child’s best interests.  § 61.403, Fla. Stat.

A guardian ad litem usually provides the parties and the court with a written report.  One of the drawbacks to using a guardian ad litem is that they are subject to the traditional rules of evidence.  So, although guardians can interview witnesses, for example, they generally cannot testify to the content of these out-of-court statements given the evidentiary rules against hearsay.  Scaringe v. Herrick, 711 So. 2d 204, 205 (Fla. 2d DCA 1998).  A guardian can still advise the court of her recommendations, but she is often unable to detail the basis for her conclusions and she therefore may struggle to convince the court that her recommendations are sound.  As a result, many private guardians will refuse to accept the position unless both parents agree in advance to waive constraints against hearsay and other formal rules of evidence.

When the rules of evidence are waived, a guardian ad litem can be a welcome addition to a child custody proceeding.  Among other things, the guardian’s ability to investigate the case and interview witnesses may supplant the need for the parties’ attorneys to investigate the case, depose the witnesses and conduct a lengthy trial—all at the expense of the litigants.  Further, once the guardian makes his or her recommendations the odds that a custody case might settle outside of the courtroom rises significantly.

The main drawback to using a guardian is typically the cost.  Most private guardians are attorneys who bill hourly.  Rates vary dramatically, as does each guardian’s efficiency and level of work product.  Additionally, involving a guardian ad litem in your case inevitably means that the children will be interviewed and otherwise made aware of their parents’ conflicts.  As a result, it is important that your hire an attorney that is able to advise you on which guardian is the best fit for your situation.

Social Investigators

Finally, the court may order a social investigation in any case where it decides that doing so is appropriate.  The appointed investigator must prepare a written report containing recommendations and a statement of the facts on which the recommendations are based.  The statute governing social investigations explicitly provides that “the technical rules of evidence” do not apply to such reports.  § 61.20, Fla. Stat.

While a social investigation may be conducted by a social worker, therapist, mental health counselor or qualified staff of the court, the court often will appoint a licensed psychologist to conduct the study.  In doing so, the court may order that the parties and/or the children submit to psychological evaluations.  Although the Florida Supreme Court has cautioned against the overuse of such evaluations, there is technically no requirement that the trial court find “good cause” prior to ordering the testing.  See, e.g., Russenberger v. Russenberger, 639 So. 2d 963, 965 (Fla. 1994).

Social investigations that are conducted by social workers or departments associated with the court may be relatively inexpensive, but in many ways the adage “you get what you pay for” applies.  A psychologist or other mental health professional will almost always charge more but will do a far more in-depth analysis of your case prior to providing recommendations to the court.

As with guardians ad litem, a social investigation will unavoidably involve your children in the litigation.  Moreover, an investigation involving psychological evaluations will effectively attempt to diagnose you and your spouse with any number of mental health disorders.  Such evaluation may become part of your public court file, so it is important to strongly consider whether your particular set of facts and circumstances necessitates such an invasive process.

Conclusion

Although in some ways parenting coordinators, guardians ad litem and social investigators are treated as alternative solutions to the same problem, each is distinct and serves a unique purpose in conflicted child custody proceedings.  It is critical to hire an attorney that understands these differences and knows how best to implement the tools afforded by each of the professionals discussed herein.

If you are or expect to be involved in a legal proceeding involving your children, contact me or any of the other attorneys at Felix, Felix & Baseman for a free consultation.

– Mark F. Baseman, Esq.