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Legal Lesson - Guardian Ad Litem, Sections 61.401-405

ABSTRACT: a guardian ad litem (GAL) may be appointed in any action involving the creation, approval, or modification of a parenting plan. the court may make the appointment if it finds it is in the best interests of the minor child(ren). The GAL’s purpose is to be the next of friend of the child but not an advocate of the child.Section 61.403 enables The Guardian to conduct an investigation, review court file, and make recommendations including a written statement of the child’s wishes. However, Guardians ad litem cannot testify beyond this as to hearsay, unlike a social investigator.  GAL’s also can file motions, pleadings, and discovery requests because they are a party to the suit upon appointment. As a consequence, GAL’s have to be noticed of all matters.  The GAL’s failure to provide a report will not preclude a trial court from deciding the matter without his/her participation. finally, GAL’s have statutory duty to maintain confidentiality of documents received, and even parties cannot compel disclosure.

Relevant  Statute:  §§61.401-405, Florida Statues

§ 61.401.  Appointment of guardian ad litem

In an action for dissolution of marriage or for the creation, approval, or modification of a parenting plan, if the court finds it is in the best interest of the child, the court may appoint a guardian ad litem to act as next friend of the child, investigator or evaluator, not as attorney or advocate. The court in its discretion may also appoint legal counsel for a child to act as attorney or advocate; however, the guardian and the legal counsel shall not be the same person. In such actions which involve an allegation of child abuse, abandonment, or neglect as defined in s. 39.01, which allegation is verified and determined by the court to be well-founded, the court shall appoint a guardian ad litem for the child. The guardian ad litem shall be a party to any judicial proceeding from the date of the appointment until the date of discharge.

§ 61.402 Qualification

Author’s Summary: Guardian ad litems must be either: (1) A member in good standing of the Florida Bar; (2) a Certified member of the Guardian Ad Litem Program; (3) Certified by not-for-profit legal aid organization. Also Guardians ad litem must pass a background check prior to their certification.

§ 61.403 – Powers and Authority

A guardian ad litem when appointed shall act as next friend of the child, investigator or evaluator, not as attorney or advocate but shall act in the child's best interest. A guardian ad litem shall have the powers, privileges, and responsibilities to the extent necessary to advance the best interest of the child, including, but not limited to, the following:

(1) The guardian ad litem may investigate the allegations of the pleadings affecting the child, and, after proper notice to interested parties to the litigation and subject to conditions set by the court, may interview the child, witnesses, or any other person having information concerning the welfare of the child.

(2) The guardian ad litem, through counsel, may petition the court for an order directed to a specified person, agency, or organization, including, but not limited to, hospitals, medical doctors, dentists, psychologists, and psychiatrists, which order directs that the guardian ad litem be allowed to inspect and copy any records and documents which relate to the minor child or to the child's parents or other custodial persons or household members with whom the child resides. Such order shall be obtained only after notice to all parties and hearing thereon.

(3) The guardian ad litem, through counsel, may request the court to order expert examinations of the child, the child's parents, or other interested parties in the action, by medical doctors, dentists, and other providers of health care including psychiatrists, psychologists, or other mental health professionals.

(4) The guardian ad litem may assist the court in obtaining impartial expert examinations.

(5) The guardian ad litem may address the court and make written or oral recommendations to the court. The guardian ad litem shall file a written report which may include recommendations and a statement of the wishes of the child. The report must be filed and served on all parties at least 20 days prior to the hearing at which it will be presented unless the court waives such time limit. The guardian ad litem must be provided with copies of all pleadings, notices, and other documents filed in the action and is entitled to reasonable notice before any action affecting the child is taken by either of the parties, their counsel, or the court.

(6) A guardian ad litem, acting through counsel, may file such pleadings, motions, or petitions for relief as the guardian ad litem deems appropriate or necessary in furtherance of the guardian's function. The guardian ad litem, through counsel, is entitled to be present and to participate in all depositions, hearings, and other proceedings in the action, and, through counsel, may compel the attendance of witnesses.

(7) The duties and rights of nonattorney guardians do not include the right to practice law.

(8) The guardian ad litem shall submit his or her recommendations to the court regarding any stipulation or agreement, whether incidental, temporary, or permanent, which affects the interest or welfare of the minor child, within 10 days after the date such stipulation or agreement is served upon the guardian ad litem.

§ 61.404 – Confidentiality.

The guardian ad litem shall maintain as confidential all information and documents received from any source described in s. 61.403(2) and may not disclose such information or documents except, in the guardian ad litem's discretion, in a report to the court, served upon both parties to the action and their counsel or as directed by the court.

§ 61.405 – Immunity

Any person participating in a judicial proceeding as a guardian ad litem shall be presumed prima facie to be acting in good faith and in so doing shall be immune from any liability, civil or criminal, that otherwise might be incurred or imposed.

Can a Guardian Ad Litem review court files of other cases?

Review of the pending court file, together with the files of any potentially relevant judicial proceedings, is a fundamental duty for any guardian ad litem appointed pursuant to Fla. Stat. § 61.401. See, Owens v. Owens, 685 So. 2d 1038, (Fla. 4th DCA 1997).

Can a Guardian Ad Litem file motions, pleadings, discovery requests as any other party?

Yes. See, relevant language of Shienvold v. Habie, 622 So.2d 538, (4th DCA 1993):

“While the powers specifically enumerated in the statute [**2]  do not include the authority to seek to have the parents' final judgment of dissolution set aside, they do include filing "such pleadings, motions or petitions for relief as the guardian ad litem deems appropriate or necessary . . . . " § 61.403(6), Fla. Stat. (1991).

The Guardian is accorded full status as a party to the action. According to the Senate Staff Analysis, the effect of Senate Bill 110, which was codified as section 61.401 et seq., Florida Statutes, would be that: The guardian ad litem would be made a party to the action and would have all the powers, privileges, and responsibilities accorded to the other parties and necessary to represent or advance the best interests of the child.Staff of Fla. S. Comm. on JCI for SB 110 (1990) Staff Analysis (February 22, 1990)(Florida State Archives).”

Does a Guardian Ad Litem have unlimited access to a minor’s records?

No.

If a minor asserts a patient-psychotherapist privilege, the Court must conduct a noticed hearing prior to authorizing the Guardian ad litem to obtain therapist records and/or talk to the child’s therapist. . S.C. v. Guardian Ad Litem, 845 So. 2d 953 (Fla. 4th DCA 2003).

Can the attorneys inquire of the Guardian Ad Litem and their report and recommendations?

Yes.

In a change of custody case, it was reversible error for the trial court to fail to allow the parties to examine the guardian ad litem as a witness in the case regarding the conclusions in the guardian's report. Miller v. Miller, 671 So. 2d 849, 1996 Fla. App. LEXIS 3706 (Fla. 5th DCA 1996).

Can Guardians ad litem testify as to hearsay like a social investigator pursuant to 61.20?

No.

Filing of a written report by a guardian ad litem pursuant to Fla. Stat. § 61.403(5) does not automatically place the report in evidence; hearsay rules apply to the report and to the testimony given by the guardian. Scaringe v. Herrick, 711 So. 2d 204, 1998 Fla. App. LEXIS 5538 (Fla. 2nd DCA 1998).

Can a guardian ad litem participate in appellate proceedings?

The filing of motions and a brief by a guardian ad litem in appellate proceedings in a child custody suit violates the statutory prohibition against guardians acting as advocates, Perez v. Perez, 769 So. 2d 389, (Fla. 3rd DCA 1999).

What if a Guardian Ad Litem fails to file a report?

Where a guardian ad litem in a child custody dispute failed to submit a mandatory final report under Fla. Stat. § 61.403, the final judgment was not void, although the guardian was not provided with copies of all pleadings, notices and documents, because the guardian had notice of the appointment, but did not review the file, file a report, or make further inquiries, which would have disclosed the existence of the trial order. Owens v. Owens, 685 So. 2d 1038, 1997 Fla. App. LEXIS 127 (Fla. 4th DCA 1997).

Guardian ad Litem’s Confidentiality at to the Parties as well?

Former husband's discovery request, in a proceeding to modify child custody, which was directed at the court-appointed guardian ad litem was properly denied pursuant to Fla. Stat. § 61.404. The requested material consisted of documents, reports and information obtained from third parties in connection with the guardian's investigation of this case; however, the case suggests the Guardian ad litem is obligated to disclose the witnesses used in making a report. Metcalfe v. Metcalfe, 655 So. 2d 1251, (Fla. 3rd DCA 1995).

Who gets paid first?

Trial court properly granted priority to a guardian ad litem appointed pursuant to Fla. Stat. § 61.401 to recover guardian fees from a marital estate rather than to attorneys to enforce a charging lien, as the trial court had inherent authority to ensure that a court-appointed guardian was paid as a cost of litigation. Franklin & Criscuolo/Lienor v. Etter, 924 So. 2d 947, (Fla. 3rd DCA 2006).

MICHAEL J. SCARINGE, Appellant, v. PENNI SCARINGE HERRICK, Appellee.

CASE NO. 96-03804


COURT OF APPEAL OF FLORIDA, SECOND DISTRICT


711 So. 2d 204; 1998 Fla. App. LEXIS 5538; 23 Fla. L. Weekly D 1264


May 20, 1998, Opinion Filed


SUBSEQUENT HISTORY: [**1]  Released for Publication June 5, 1998.



PRIOR HISTORY: Appeal from the Circuit Court for Pinellas County; Richard A. Luce, Judge.



DISPOSITION: Affirmed.



COUNSEL: Elizabeth G. Mansfield of Carnal & Mansfield, P.A., St. Petersburg, for Appellant.



Penni Scaringe Herrick, Appellee, Cocoa, pro se.



JUDGES: WHATLEY, Judge. PARKER, C.J., Concurs. BLUE, J., Concurs specially.



OPINION BY: WHATLEY



OPINION



[*204]  WHATLEY, Judge.



Michael J. Scaringe, the father, appeals a final order on a petition for modification of custody filed by Penni Scaringe Herrick, the mother. The mother was awarded sole parental responsibility of the parties' minor daughter. We affirm.

The mother had an extraordinary burden to effectuate a change of custody. See Blosser v. Blosser, 1997 Fla. App. LEXIS 11979, 22 Fla. L. Weekly D2795 (Fla. 2d DCA Oct. 22, 1997). The trial court found the father to have denied or unilaterally reduced the mother's visitation when the father had custody. The trial court coupled this finding with an additional finding of "alienation by the father-primary residential parent to the extent that the child 'hated' the mother." Such a finding is a valid basis for a change in custody. See Berlin v. Berlin,  [**2]  386 So. 2d 577 (Fla. 3d DCA 1980). This case turned on credibility determinations, and we cannot say the trial court abused its discretion in granting the petition to modify custody.

What did cause us concern was the role the guardian ad litem played. The guardian's report contained hearsay; the guardian testified to matters that were hearsay; and the guardian became an advocate. We have carefully reviewed the record related to these actions of the guardian, and we conclude that they were not so fundamentally unfair as to warrant a remand for a new hearing.

The statute controlling the powers and authority of guardians ad litem is section 61.403, Florida Statutes (1995). Subsection (5) of that statute mandates that the guardian file a written report. By necessity, the report will usually contain hearsay. The act of filing the report does not place the report  [*205]  in evidence. Hearsay rules contained in the Florida Evidence Code apply to section 61.403. Accordingly, when a guardian attempts to testify to hearsay statements and a valid hearsay objection is raised, that objection should be sustained.

The statute further mandates that the guardian shall act as the friend of the child [**3]  and in the child's best interest. See § 61.403. However, the statute also states that the guardian shall not act as an advocate. See § 61.403. The art of advocacy is solely within the domain of counsel or the pro se litigant.

We recognize that  section 61.20, Florida Statutes (1995), allows the trial court to consider social investigations and studies in child custody matters without regard to the rules of evidence. However, this statute applies to social investigations and studies conducted by qualified staff of the court or other specified professionals or agencies as set forth in section 61.20(2). A typical guardian ad litem, such as the one in this case, does not meet the criteria of section 61.20(2). Further, we note that there is no similar exception to the rules of evidence in the statute pertaining to guardians ad litem. See § 61.403.

We do not minimize the importance of the role of guardians ad litem in custody cases. Rather, we reiterate the statutory constraints and evidentiary rules which apply.

Affirmed.

PARKER, C.J., Concurs.



BLUE, J., Concurs specially.



CONCUR BY: BLUE



CONCUR



BLUE, Judge, Specially concurring.



I concur because I agree the record [**4]  contains competent, substantial evidence without the testimony of the guardian ad litem to support the decision of the trial court. I write to add another observation regarding guardians ad litem to the concerns expressed by the majority. Guardians ad litem render an invaluable service to the children and courts of this state; however, it is the trial judge who is responsible for the final decision in custody and visitation disputes. Trial judges must remain vigilant that they not abdicate their fact-finding and decisional responsibilities to a guardian ad litem assigned to report on the best interest of a child or children.


DALE CHRISTOPHER OWENS, Appellant, v. MARCIA ELLEN OWENS, Appellee. GARY PUDALOFF, Appellant, v. DALE CHRISTOPHER OWENS and MARCIA ELLEN OWENS, Appellees.


CASE NOS. 95-2160 and 95-2313


COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT


685 So. 2d 1038; 1997 Fla. App. LEXIS 127; 22 Fla. L. Weekly D 212


January 15, 1997, Filed

SUBSEQUENT HISTORY: [**1]  Released for Publication January 31, 1997.



PRIOR HISTORY: Consolidated appeals from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; James M. Reasbeck, Judge; L.T. Case No. FMCE 94-10493 (37/90).



DISPOSITION: AFFIRMED, IN PART; REVERSED, IN PART; and REMANDED with directions to reconsider the distribution of marital assets.



COUNSEL: Donald G. Criscuolo of Genet & Criscuolo, P.A., North Miami Beach, for Dale Christopher Owens.



Terry Ellen Fixel and Tracy Newmark of Fixel & LaRocco, Hollywood, for Gary Pudaloff.



Norman S. Levin of Norman S. Levin, P.A., Fort Lauderdale, for Marcia Ellen Owens.



JUDGES: KENNEY, SCOTT M., Associate Judge. DELL and WARNER, JJ., concur.



OPINION BY: Scott M. KENNEY



OPINION



[*1039]  KENNEY, SCOTT M., Associate Judge.



Three issues are raised in these consolidated appeals from a final judgment dissolving the marriage of Dale Christopher Owens and Marcia Ellen Owens: (1) failure to provide the guardian ad litem with proper notice and opportunity to be heard; (2) abuse of discretion in determining the primary residential parent; and (3) improper distribution of marital assets. We affirm as to points one and two, and reverse as to point three.

[**2] Guardian Ad Litem

Mr. and Mrs. Owens had two minor children. They were involved in heated pretrial disputes over the children and other issues. The matter was referred to a special master. After an evidentiary hearing, a written report dated January 9, 1995, was issued, recommending, in part, that appellant, Gary Pudaloff, be appointed the children's guardian ad litem pursuant to section 61.401, Florida Statutes (Supp. 1994). A copy of the report was not sent to Mr. Pudaloff. No objections to the report were filed and on January 24, 1995, the trial court entered an order approving  [*1040]  it. A copy of that order was sent to Mr. Pudaloff.

However, the preceding day (January 23, 1995) the trial court had entered an order setting the case for final hearing on its April, 1995, docket. A copy was not sent to the guardian. Subsequent pleadings were filed on behalf of both parents, but copies were not sent to the guardian. He was not subpoenaed or requested to appear at trial by either side. The case proceeded to trial without a written report or oral recommendation from the guardian.

Mr. Pudaloff contends the final judgment is void because his written report was mandatory under section [**3]  61.403(5), Florida Statutes (Supp. 1994), and, as a party to the proceeding, he was required to receive copies of all pleadings and proper notice. Under the facts of this case, we disagree.

Section 61.401, Florida Statutes (Supp. 1994), designates a guardian ad litem as a party to the proceeding from the date of appointment.  Section 61.403(5), Florida Statutes (Supp. 1994), allows a guardian ad litem to address the court and make oral or written recommendations. It also provides that a guardian "shall" file a written report at least 20 days prior to a relevant hearing, unless the time limit is waived by the court. Finally, it requires the guardian be provided with copies of all pleadings, notices and documents filed in the case, as well as reasonable notice before any action affecting the child is undertaken.

In this case the guardian was not provided with copies of all pleadings, notices and documents after his appointment. 1 Nonetheless, he had notice of his appointment and undertook to interview Mr. and Mrs. Owens, their children and other persons with knowledge and opinions about the issues involving the children. However, he neglected to review the court file. Such a review [**4]  would have disclosed the existence of the trial order. We believe that a review of the pending court file, together with the files of any potentially relevant judicial proceedings, 2 is a fundamental duty for any guardian ad litem. It not only serves to confirm the accuracy of information provided by the parties, but can also assist in discovering information relevant to the best interests of a child, which neither parent wishes to disclose or neglects to disclose (as in this case).

1   It is noted that when the trial court issued its order setting the final hearing, Mr. Pudaloff had not been formally appointed. Thus, he was not yet a party pursuant to 61.401. The burden to provide previous filings properly rests with the parties or their counsel and not the trial judge.

2   For example, the guardian should make an independent search for prior dissolution, domestic violence, guardianship and criminal proceedings. Consideration should also be given to requesting permission to search for confidential dependency, mental health and substance abuse proceedings, if there are reasonable grounds to make such a request.

[**5]  Finally, and perhaps most importantly, Mr. Pudaloff did have actual notice of the trial docket in this case. He received a letter from counsel for the husband dated March 8, 1995, requesting his written report and informing him that the case was set for trial in April, 1995. He did not file a report and made no further inquiries. The trial court concluded Mr. Pudaloff had an affirmative duty to make further inquiry. We agree.

We also find no error in proceeding to adjudicate the case without the guardian's written report. Section 61.403(5), Florida Statutes (Supp. 1994), clearly places the burden of filing the report on a guardian ad litem. It does not prevent a court from ruling in the event a report is not filed. Nor are oral reports mandatory under the wording of the statute. Construing it otherwise would hold trial judges hostage to the inactions of guardians and prevent them from making necessarily expedient decisions concerning children caught in the middle of domestic disputes.

Primary Physical Residence

The trial judge awarded primary physical residence of the minor children to the mother. Mr. Owens contends that was an abuse of discretion in view of the sole [**6]  expert testimony in the case. We cannot agree.

[*1041]  Trial courts have broad discretion on this issue. Their decisions should not be disturbed on appeal, even if an appellate court might have reached a different result, unless the decision was unreasonable.  Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980). In this case there was competent evidence to support the decision, notwithstanding the expert's opinion to the contrary.

Distribution of Marital Assets

The final judgment awarded a disproportionate amount of the marital assets to the wife solely due to her "contribution as a homemaker and mother during the marriage."

The parties disagree as to the exact proportions. The wife contends it was a de minimis 55%-45%. The husband contends it was 73%-27% in the wife's favor. We calculate the proportion to be 60%-40% in favor of the wife. The monetary difference was approximately $ 15,300 out of approximately $ 78,700 in net marital assets.

Section 61.075(1), Florida Statutes (1993), requires courts to begin with the premise that marital asset distribution should be equal. It allows for unequal distribution based upon consideration of all relevant factors. One such factor [**7]  was partially cited by the trial judge pursuant to 61.075(1)(a). However, he failed to address or weigh other possible factors. Furthermore, we do not construe the language of 61.075(1)(a) as being limited to just the contributions of one spouse as a homemaker and parent. It requires consideration of the contributions, or lack thereof, of each spouse.

In Kovar v. Kovar, 648 So. 2d 177 (Fla. 4th DCA 1994), this court reiterated its position that marital assets should be distributed equally, unless there is justifiable reasoning for disparate treatment. The unequal distribution must be grounded upon logic and basic fairness and not cause one spouse to fall from prosperity to misfortune.

We certainly cannot conclude that the husband would fall upon misfortune as a result of the distribution in this case. Nonetheless, these are parties of limited means. $ 15,300 is a substantial portion of their net assets and is not a de minimis disparity.

In other words, it was error to unequally distribute marital assets based solely upon the contributions of Mrs. Owens as a homemaker and parent, without an explanation as to why any contributions of Mr. Owens, as well as the additional factors [**8]  under 61.075(1), did not apply. 3

3   We do not mean to imply that an unequal distribution would necessarily be improper in this case. Rather, the factorial reasoning and balancing should be addressed by the trial court.

AFFIRMED, IN PART; REVERSED, IN PART; and REMANDED with directions to reconsider the distribution of marital assets.

DELL and WARNER, JJ., concur.

By Kenny Leigh