Are Legal Child Guardians (Guardians ad Litem) Still Relevant?

Once upon a time, Chancellors in Mississippi relied heavily on child legal guardians to make recommendations as to the best interests of minors subject to litigation in their respective districts. Although it has always been clear that Mississippi statute mandates the appointment of a guardian ad litem (guardian at law, latin derivation, or simply G.A.L.), in certain scenarios, such as those involving abuse, neglect, or adoption, and termination of parental rights, chancellors also often relied on these appointees to perform much of the fact finding in custody/visitation cases. After a recent appellate court decision, child guardian’s roles in custody matters has been significantly diminished and minimized in legal domestic proceedings.

In the current context, G.A.L’s have enjoyed, up until recently, broad discretion in making custody recommendations to the presiding judge in the cases to which they were assigned. However, after a recent Mississippi Court of Appeals Court ruling, much of their sway has been eliminated due to the evidentiary rule precluding hearsay testimony. I once heard a very experienced lawyer in 2008 argue against the appointment of a child guardian because, as he put it, they are simply a ”conduit for hearsay”. It seems he was ahead of the curve and that his opinion is now broadly reflected in Mississippi jurisprudence. When and if a chancery judge disagreed with a custody placement recommendation by a child guardian, they have to go through additional rigor and explanation in order to cement their reasoning for such disparity. It rarely occurs. Such is often grounds for appeal, and often well-placed.

At any rate, it is important to understand the basis for hearsay objection in order to recognize the basis for our recent shift in law and the effect it has had on the role of child guardians. Hearsay is defined as “A statement other than one made by the declarant while testifying at a trial or hearing offered into evidence to prove the truth of the matter asserted”, (Black’s Law Dictionary, 2008 as amended). McCormick on Evidence has a more complex definition, but for our purposes it is in essence a distraction from the broader concept. Sounds simple enough, but combined with over a dozen exceptions and exceptions to those exceptions, it can get tricky pretty fast. So, the short of hearsay exceptions as they pertain to child custody matters is that few practically apply, therefore what the child has TOLD his or her court appointed guardian is more likely than not inadmissible in a court proceeding.

So, child guardians are a thing of the past? Not exactly. Although they have reduced roles in custody matters, guardians have been largely privy to adjust their reporting to the court and issue appearance subpoenas for those with firsthand knowledge of the matters at hand. Essentially, costs just went up for the parties who request the intervention of a fact-finder and guardian due to increased complexity in commanding witnesses to court. Their statements, as well as those of the children, are certainly scrutinized by virtue of this seeming “crackdown” on out-of-court statements offered as evidence.

In the “good old days” as I call them, hearsay rules seemed to have limited, if any application to child guardians in custody proceedings. (As a side note, when I used to reference the “good old days”, a former clerk would quickly remind me, “Matt, give it a few years, you’ll be saying that these were the good old days”…..well put. Now, under enhanced scrutiny from both state appellate courts and constitutional principles, not to mention adherence to the strict rules of codified evidence, hearsay will likely be held out of custody proceedings unless a clear exception is applicable. Gone are the days of playing fast and loose with evidentiary truisms. Although it is not clear what the future holds in child custody litigation, it is obvious that we are on a path toward appreciable adherence to the simple rules as codified by the rules of civil procedure and of evidence. Back to square one it seems.

If you are involved in custody litigation and would like a fresh, second opinion as to your best path forward, feel free to contact us anytime.

Matthew Poole is a Jackson, Mississippi custody and divorce attorney who has taken several hundred domestic matters to trial. He is a 2001 Second Century Scholar and Finalist of the Steen, Reynolds, Dalehite Trial Competition at the University of Mississippi School of Law.

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