The Lawletter Vol 36 No 11
Guardians ad litem serve a very useful role in child custody proceedings. But it is important to remember that a guardian ad litem is not a judge, and an order giving the guardian too much authority may be invalid.
In Van Schaik v. Van Schaik, 24 A.3d 241 (Md. Ct. Spec. App. 2011), the trial court was faced with a very common situation: The parents of two children had shown persistent inability to communicate and resolve differences without court intervention. In response, the court entered the following order:
[E]xcept in emergencies, the parties shall communicate through e‑mail and any contentious matters or disputed e‑mail issues shall be forwarded to the attorney for the minor children, Leigh R. Melton, Esquire, for her review. In the event [appellant] and [appellee] cannot reach a mutual agreement on any disputed matter regarding the minor children within twenty‑four (24) hours, then the attorney for the minor children shall serve as the "tie‑breaker" and resolve the dispute.
Id. at 244. The attorney to whom the disputes were referred was formally the children's "best interests attorney." A best-interests attorney is not quite exactly a guardian ad litem, but fulfills a very similar role as an advocate for a child's best interests. A best-interests attorney can be contrasted with a "child advocate attorney," who advocates the child's wishes without considering whether the wishes are in the child's objective best interests.
The trial court's order was well intentioned, but it was nevertheless reversed upon appeal. "Maryland cases have made clear that a court may not delegate to a non‑judicial person decisions regarding child visitation and custody." Id. at 245. The order under review allowed the best-interests attorney to resolve literally any disputed matter, without indicating that the attorney's resolution was subject to any form of judicial review or modification. Because the power granted was so broad, "we conclude that the court erred by delegating judicial authority to Melton, a non‑judicial person." Id. at 246.When delegating authority to a guardian ad litem or other representative of the child's interests, therefore, it is essential to preserve the right to seek judicial review of the guardian's decisions. If that right is not expressly preserved, a court might well conclude that the order makes an improper delegation of judicial power.