The Mckinney Law Group

The Role of the Guardian Ad Litem in Florida Trial Courts

Guardian Ad Litems serve the best interests of a child during a divorce case.

In Florida divorce and child custody proceedings, a guardian ad litem (GAL) may be appointed to investigate solutions that are in the best interests of the children involved. Whether the GAL is appointed by court order, a party’s petition or by stipulation of both parties, the role of the GAL will remain the same.

Specifically, the role of the GAL in Florida trial courts is outlined according to Florida statutes and relevant case law.

The Role of a Guardian Ad Litem According to Florida Statutes and Case Law

According to ยง61.403 of the 2016 Florida Statutes, the GAL is expected to act as “next friend of the child.” More precisely, the GAL is expected to perform their duties as an investigator and evaluator who is looking out for a child’s best interests, but the GAL is not supposed to serve as the child’s attorney or advocate. Case law interpreting this statue reinforces this notion.

In the case of Perez v. Perez, 769 So. 2d 389 (Fla. 3d DCA 1999), the court was left to determine the role of the GAL. In the case, it was held that a GAL:

  • Cannot act as advocates for the children
  • A GAL’s duties and responsibilities are not coextensive with an attorney’s
  • Must serve as an independent fact investigator
  • Must act in the best interest of the children, even when the child’s best interests conflict with the child’s desires

The case of Roski v. Roski, 730 So.2d 413 (Fla. 2d DCA 1999) also supported the Perez case by also asserting that a GAL’s role is to act as next of friend to the child, not as an attorney or advocate.

Simply put, legal advocacy is the domain of lawyers. A GAL’s sole role and the authorities granted to them lead to one singular function: gathering facts and analysis before reporting these findings based on the child’s best interests.

Can a Guardian Ad Litem Decide Child Custody and Visitation Issues?

A final important legal distinction to note is that the GAL may not decide on child custody and visitation issues. Florida case law makes this point explicitly clear in the Roski case previously cited as well as Shugar v. Shugar, 924 So. 2d 941, 942 (Fla. 1st DCA 2006).

Both cases clearly prohibit the trial court from delegating authority and the court’s decision-making responsibilities to a GAL in order to determine issues like child visitation and custody.

If you have questions regarding Guardian Ad Litem, or are unaware as to the terms and conditions in, talk to, and retain, a family law attorney who can help. Contact Damien McKinney of The McKinney Law Group to discuss your case further. He can be reached by phone at 813-428-3400 or by e-mail at [email protected]