By Coryelle Christie (1) (Genesee County)
In family law, Judges, lawyers, and litigants are always trying to find new ways to assist families in a manner that avoids constant litigation. Litigation takes time and resources from the Court, which is already overburdened. In addition, litigation is very hard on families. While a trial is an option, it is usually a very invasive, unpleasant experience that can leave a family even more broken than before. For these reasons, alternative dispute resolution methods can be a great solution for many families. Courts have many options, such as FIG conferences at the FOC, mediation, collaborative law, or arbitration. The use of these methods vary by county.
In some counties, courts and litigants have started utilizing guardian ad litems (GAL), lawyer-guardian ad litems (LGAL), and parenting coordinators with greater regularity. While these roles have existed within the law for some time, an increase in use has been seen in recent years. Along with the greater use, however, comes confusion regarding what these roles are and how they can be used.
Part of the confusion in defining these three roles is that the term guardian and guardian ad litem are used throughout several areas of law. Therefore, many may have trouble distinguishing which laws apply to which role. Further, while there is some guidance for these roles in statute, not all are well defined, and there is not a large body of case law.
Indeed, lawyers and Judges should be careful not to confuse GALs or LGALs with roles of the same title in different areas of law. For example, a guardian ad litem under the Estate and Protected Individuals Code (EPIC), see MCL 700.5305, is distinct from a GAL under the child custody act or juvenile code (2). Another example is a guardian under the probate code. MCL 700.1104(n) provides that a guardian is a “person who has qualified as a guardian of a minor or a legally incapacitated individual,” specifying that a “[g]uardian does not include a guardian ad litem.” Lending even more to the confusion is that often these areas of law can intersect. For instance, if a concern arises during a family court proceeding regarding a party’s competency, the appropriate practice is for the Circuit Court to refer the matter to the Probate Court for a determination about possible guardianship. This is not to be confused, of course, with a guardian, GAL, or an LGAL for a child.
Before utilizing a GAL, LGAL, or a parenting coordinator in family court, it is paramount to specify what role is being utilized. Several of the appellate cases available in this area arise from or address confusion surrounding which role is really being used. These cases will be discussed with more detail, infra.
Another factor to consider before appointing a GAL or LGAL is cost. While many highly disputed cases may benefit from greater intervention, GALs, LGALs, and parenting coordinators all cost money when being utilized in family court. For a low-income family, this solution may not be practicable. If cost is a legitimate concern, the court could consider alternative methods for resolution that are free or perhaps can seek pro bono assistance. While it is possible that GALs and LGALs be paid for by the money allocated from marriage license fees for family counselor services pursuant to MCL 551.103, these funds are usually quite limited. MCL 722.24(4).
LAWYER GUARDIAN AD LITEM (LGAL)
An LGAL is a lawyer who represents the best interests of the child. As such, an LGAL will likely have a role like an attorney for either of the parties, which includes making arguments and questioning witnesses. Pursuant to MCL 722.24(2), the court may appoint an LGAL at any time during a child custody dispute if the court determines that the child’s best interests are being inadequately represented. See also MCL 712A.13a(f); MCL 722.22(h), LGAL “means an attorney appointed under [MCL 722.24]. A [LGAL] represents the child, and has the powers and duties as set forth in [MCL 722.24].” The role of an LGAL in family court and in a child protective proceeding overlap. MCL 712A.17d defines the powers and duties of an LGAL under the juvenile code, and this statute also applies to child custody proceedings. MCL 722.24(2). (3)
The attorney-client privilege applies to an LGAL. An LGAL may not be called to testify, and their file is not subject to discovery. MCL 712A.17d(3). The LGAL may file a written report and recommendation, and the court may read this report and recommendation. The report and recommendation may not be entered into evidence unless all the parties stipulate to its admission. MCL 722.24(3). Costs for an LGAL in a child custody proceeding are assessed to the parties, but the court must approve the fee charged. MCL 722.24(4). The LGAL must request permission from the court to withdraw or resign. MCL 712A.17c(9).
During a case, the LGAL should be entitled to full and active participation in all aspects of the litigation and access to all relevant information regarding the child. MCL 712A.17d(1)(b). The LGAL shall determine the facts of the case and conduct an independent investigation to include, at a minimum, interviewing the child, social workers, family members, and any other necessary individuals. MCL 712A.17d(1)(c). The LGAL shall meet with and observe the child to assess the child’s needs and wishes. MCL 712A.17d(1)(d). The LGAL shall be able to file pleadings, call witnesses, and attend all hearings. MCL 712A.17d(1)(g)-(h). The LGAL shall advocate for the child’s best interests, which is not always the same as what the child wants to occur. The LGAL must consider the child’s wishes and weigh those wishes against the child’s competence and maturity. MCL 712A.17d(1)(i). The LGAL shall inform the court as to the child’s preference, however. If the LGAL plans to advocate for a position inconsistent with the child’s wishes, the court can appoint an attorney for the child to serve in addition to the LGAL. MCL 712A.17d(2).
In Farris v McKaig, 324 Mich App 349, 359-360; 920 NW2d 377 (2018), the Court of Appeals further explained the role of an LGAL and the distinction between an LGAL and a lawyer for the child:
The Court in Farris further decided whether an LGAL has governmental immunity when acting in a child protective proceeding. The court ultimately held that LGALs were immune from civil liability pursuant to MCL 691.1407(6) when acting in their role as an LGAL. Id. at 366.
There are a few other appeals cases that dealt with an LGAL. In Patton v Patton, unpublished
opinion of the Court of Appeals, Docket Number 317983 (2014), the Defendant Father appealed, arguing that it was unclear whether the trial court had appointed an LGAL or a GAL. The Court of Appeals noted that the trial court was inconsistent in its order and statements regarding whether the attorney in question was acting as an LGAL or a GAL. The Court determined that the attorney was acting as an LGAL because the trial court indicated that the attorney was to “represent” the child. Id. at 1. The Court also held that the LGAL did not exceed their authority in questioning witnesses. The trial court did not err in appointing the LGAL after the trial had begun. Id. at 3. The LGAL was not required to interview the parties with their attorneys present. The LGAL was permitted to attend the in-camera interview of the child conducted by the court. The trial court was able to read the LGAL report, despite that it was not entered into evidence. Id. at 4.
In Jacob v Jacob, unpublished opinion of the Court of Appeals, Docket Numbers 344580, 344598, 344654, 344809, 344894, 347014, and 350162 (2020), the Defendant Father argued that the trial court erred in denying his motion to remove the LGAL and in ordering him to pay the LGAL fees. The trial court agreed that removal of the LGAL was warranted, finding that based on the specific facts of the case, the LGAL was antagonistic toward the Defendant and her behavior exceeded the bounds of the LGAL. Slip op at 16. The Court also vacated the order awarding the LGAL fees because there was no evidentiary hearing over whether the fee was reasonable. Slip op at 17.
GUARDIAN AD LITEM (GAL)
The role of a GAL is generally less defined than that of the LGAL. Pursuant to MCL 722.22(g), a GAL “means an individual whom the court appoints to assist the court in determining the child’s best interests. A [GAL] does not need to be an attorney.” See also MCL 712A.13a(f). Pursuant to MCL 722.27(1)(D), if a child custody dispute has been submitted to the circuit court, the court may utilize a GAL in a child custody dispute. MCR 3.204(D) further specifies that the court appoint a GAL for good cause shown. Appointment may occur on the court’s own initiative or at the request of a party. The costs and reasonable fees shall be assessed against the parties. Pursuant to MCL 712A.17c(10), a GAL may also be appointed in a child protective proceeding to assist the court in determining a child’s best interests.
As stated, there is no requirement that a GAL be an attorney, although many are. There is no specific mention of a GAL report or recommendation in the child custody or juvenile code. (4) However, in the court order appointing a GAL, the parties can and should include whether the GAL is to prepare a written report and how that report should be dispersed. If the GAL does submit a report, the GAL may be called to testify, and the parties are permitted to question the GAL regarding their report. Stretch v Bush, unpublished opinion of the Court of Appeals, Docket Number 351196 (2020), slip op at 6.
Ultimately, a GAL is tasked primarily with helping the court determine what is in the child’s best interests. To distinguish, an LGAL’s role goes beyond that of a GAL but also intersects with a GAL. “[A] LGAL functions like an attorney and has duties that go beyond those of a GAL, [but] a LGAL’s duties ultimately conform to those of a GAL: investigating and independently determining the child’s best interests and then serving those interests.” Farris, 324 Mich App at 361.
Stretch, unpub op at 4, involved a scenario where the dispute was over whether an attorney in a case was acting as an LGAL or a GAL. The trial court’s order stated that it appointed a GAL, but the trial court ultimately determined that the attorney was acting as an LGAL. The Court of Appeals reversed, however, holding that the attorney was a GAL based on the court’s written order. Slip op at 6. The Court of Appeals further held that the trial court erred in denying the Defendant a right to call the GAL as a witness and question the GAL about the GAL report.
MCL 722.27c addresses parenting coordinators. A parenting coordinator is “a person appointed by the court for a specified term to help implement the parenting time orders of the court and to help resolve parenting disputes that fall within the scope of the parenting coordinator's appointment.” MCL 722.27c(1). Like an LGAL, a parenting coordinator must exercise independent, professional judgment. MCL 722.27c(3)(b) (specifying that a parenting coordinator has “authority to make recommendations regarding disputes.”) Both parties must agree to the appointment of a parenting coordinator. MCL 722.27c(2).
A parenting coordinator is empowered to resolve disputes arising between parties without court intervention. For example, if the parties have a dispute over when parenting time is scheduled to begin on a Friday afternoon, a parenting coordinator could make a recommendation immediately, which the parties are required to follow. While the order appointing the coordinator should specify how these recommendations are made and how the recommendations may be challenged, the general goal in appointing these coordinators is to assist parents who have frequent disagreements over minor (and major) issues that need quick resolution.
MCL 722.27c(3) addresses what information must be included in an order appointing a parenting coordinator, which includes:
The statute provides that recommendations of the coordinator must be made in writing. The
recommendations shall not be admitted into evidence unless stipulated by the parties. MCL
722.27c(10). The coordinator may testify but shall not disclose statements made by the child if it will harm the child. MCL 722.27c(12).
Parenting coordinators can address a variety of topics including, but not limited to transportation and exchanges; vacation and holiday schedules; extracurricular activities; discipline; health care; school; modification of parenting time; and childcare. MCL 722.27c(3)(e).
Manley v Manley, unpublished opinion of the Court of Appeals, Docket Numbers 329754 and 329760 (2016), slip op at 5, involved a dispute over a parenting coordinator. The Defendant Father argued that the trial court erred in ordering the Defendant to consult with the parenting coordinator concerning individual therapy for the Defendant. The Court of Appeals agreed with the Defendant, holding that the ruling was outside the scope of the order appointing the coordinator. There was nothing in the order granting the coordinator to power to order the Defendant to attend counseling, and the statute does not allow the trial court to unilaterally modify the scope of the coordinator’s duties. The Court of Appeals also explained that the trial court erred in suggesting that the Defendant was obligated to bring the issue of a change in custody to the parenting coordinator before raising it via motion to the court. There is nothing in the statute that requires that a change in custody be within the scope of the coordinator’s duties.
This article is dense in law and citations regarding these various roles in the hope that it can be used as a reference guide when issues regarding these roles arise. To summarize, a GAL can best be utilized when the court seeks a third-party recommendation on the best interests of the child. A GAL owes a duty to the court to gather information and assist the court in making decisions relating to custody and parenting time. An LGAL should be utilized when the court feels the best interests of the child are not being properly represented in court proceedings. The LGAL owes a duty to the child to advocate for their best interests. And finally, a parenting coordinator may be useful to parties who have frequent disputes over parenting time issues that require resolution on a constant and timely basis. Both parties must agree to a parenting coordinator, whereas a court can appoint an LGAL or GAL without permission of the parties. The parenting coordinator role is intended to assist the parties in resolving issues relating to parenting time.
(1) Coryelle Christie received her BA from the University of Michigan and her JD from Cooley Law School. She worked for the Michigan Court of Appeals as a research attorney and law clerk. She has also worked at Lakeshore Legal Aid as a staff attorney and supervising attorney. Coryelle has been a referee in Genesee County for two years. She is an avid board gamer and lives in Lake Orion with her husband and two pet rabbits.
(2) In Stretch v Bush, unpublished opinion of the Court of Appeals, Docket Number 351196 (2020), slip op at 6, the Court explained that the Defendant made an argument that MCL 700.5305 of EPIC applied to an LGAL/GAL acting under the child custody act. The Court distinguished this law, however, stating that EPIC is intended to protect incapacitated individuals and not children.
(3) This author notes that while some aspects of the Juvenile Code and Child Custody Act intersect, this article focuses on LGALs and GALs within the context of child custody proceedings.
(4) In re Farris, 324 Mich App at 358, the Court suggests that MCR 5.121 applies to a GAL under the juvenile code. However, MCR 5.121 is a probate court rule, and it is not clear whether this court rule would apply to a GAL in family court. This confusion illustrates why these roles often lead to confusion.