If you think your spouse has serious defects in his or her parenting or if he or she suffers from mental illness or substance abuse, it may be necessary for you to seek the appointment of a guardian ad litem, social investigator or other child specialist to help resolve those issues and advise the court during your divorce.
A guardian-ad-litem is an attorney or mental health professional who is appointed to conduct an investigation of the allegations made in your divorce regarding the parenting issues and to make recommendations regarding what the family needs. Examples of issues commonly investigated by a guardian-ad-litem are domestic violence, substance abuse, mental illness, psychiatric issues, sexual abuse, and parenting deficiencies.
The guardian ad litem becomes a party to your divorce and must be informed of all hearings scheduled and depositions set. Guardians are generally given access to speak to teachers, health professionals, doctors, therapists, family, friends and anyone in the community who knows about your children. The guardian will schedule a time to meet you and your children in your home and in your spouse’s residence if you are residing separately. This gives the guardian an example of what the home life at each parent’s residence is.
Guardians cannot order you or your spouse to do anything. The guardian’s job is to investigate and make recommendations. A guardian may recommend family therapy or parenting courses, and it is a wise idea to comply with those recommendations. If the guardian is concerned about the mental or physical health of your children, the guardian can ask the court to hear his or her recommendations on an urgent or emergency basis to correct some unhealthy behavior.
Generally, after conducting their investigation, the guardian will write a report that details the investigation, the statements made by all persons involved in the investigation, detailing the documents reviewed in connection with the investigation, and which makes recommendations for the parenting plan, timesharing schedule and any other issue that should be addressed.
Other child specialists could include therapists such as reunification therapists, family therapists, or child psychologists. Generally, the sessions, information and notes of other child specialists should be kept confidential so that the children and parents involved in the therapy do not have to worry about things that are said in therapy being used against them in court hearings. This allows for the therapeutic process to work.
A social investigator is similar to a guardian-ad-litem, except a social investigator is permitted to administer forensic testing or psychological evaluations to assist in the investigative process and to assist in making recommendations. A social investigator is usually a psychologist or other mental health professional certified to administer psychological evaluations. This means that a social investigator cannot be an attorney unless the attorney is also trained and permitted to administer psychological testing. Further, the report of a social investigator will automatically be admitted into evidence. This differs from the appointment of a guardian-ad-litem, because a guardian’s report is subject to hearsay objections that can be made at the time of a hearing to keep evidence or testimony away from the court.
Generally, each parent will be required to pay a portion of the fees of the child specialists. The family may designate an asset or account specifically for the professional fees. Often times, a court order is entered appointing the child specialist. That order details which parent pays what amount. In most cases, judges will look at your and your spouse’s financial affidavits to determine which amount of the family income each of you earns and apportion the fees accordingly. For example, if you earn $75,000.00 per year and your spouse earns $25,000.00 per year, you will pay 75% and your spouse will pay 25% of the child specialist fees.
If you are seeking to appoint a child specialist and your spouse objects, the court could order you to pay the retainer costs of the specialist which may be reallocated at a later hearing. If you need to appoint a therapist during your divorce, it is wise to engage the services of a therapist who is covered under your, your spouse’s or your children’s health insurance plan.