A Guardian ad Litem (“GAL”), at its most basic definition, is an attorney appointed by the Judge to represent the child in a high conflict custody or divorce matter. When parents do not get along and cannot make joint decisions for their child, the Judge will often appoint a GAL to not only assist the parents with decision-making but also let the Judge know the wishes of the child, depending on the child’s age. In all cases where a GAL is appointed, the GAL is tasked with representing the best interests of the child and making recommendations to the Judge consistent with the child’s best interests. The GAL should always get a sense of how the child feels as the main objective is to see the case and the situation from the child’s point of view.
Depending on the issues, the GAL conducts an investigation, which usually entails interviewing both parents, and any significant others of either parent and meeting with the child. In certain cases, the GAL may speak with primary care providers, teachers or other school staff, therapists, grandparents, or any other person who has significant contact or experience with the child. In cases in which abuse or neglect has been reported and the Children, Youth and Families Department (“CYFD”) has done an investigation, the GAL will communicate with CYFD regarding the allegations and investigation and can review the CYFD file if necessary. The most common issues for a GAL to address are timesharing and legal custody decisions which include residence, religion, extracurricular activities, medical care, and education.
Pursuant to New Mexico statutes, when a child is fourteen or older the Judge must consider the child’s wishes when making a timesharing or legal custody determination or change. This does not mean a child decides what is going to happen, it means the child’s voice is a factor in the ultimate decision-making process. In some states, GALs do not need to be an attorney. However, in New Mexico, only attorneys can be appointed as GALs. The GAL’s client is the child, and the GAL has the ability to call their own witnesses, introduce exhibits and ask questions of any witness at a hearing. The GAL has a confidential relationship with the child and attorney/client privilege rules apply to this relationship, just as they apply to either parent and his or her attorney.
This means the GAL cannot repeat what a child states during conversations or meetings to parents or any other third party without first getting the child’s permission to disclose the information. This is true regardless of how old the child is. The GAL can report abuse or neglect if it is disclosed in order to protect the child. The GAL does not have a confidential relationship with either parent or any other third parties. A GAL uses his or her discretion in reporting to the parents, the parents’ attorneys, or the Judge information provided by parents or other third parties.
In New Mexico, a GAL is required to issue a report and make written recommendations. The report generally outlines what the GAL did during the investigation, who the GAL talked to, and what additional information the GAL may have reviewed prior to making recommendations. Additional information can include communications between the parents, school records, medical records for the child and/or either parent, videos or other recordings, the pleadings in the divorce or custody case, any police report or domestic violence pleadings, and the CYFD file. The report is not filed with the Court but can be used as an exhibit at a hearing.
The recommendations are filed at least eleven days after they are submitted to the parents and attorneys. Either parent can file objections to the recommendations. If a parent files objections, the Judge holds a hearing and hears evidence from both parents and the GAL. The Judge makes a determination about whether the recommendations should be adopted or whether any modifications to the recommendations are warranted. Most orders appointing a GAL require that the parents follow the GAL’s recommendations until such a hearing is held unless the issue involves the relocation of a child.
A GAL can be appointed for a specific amount of time or “until further order of the Court”. GAL’s can ask to be released from an appointment and parents can agree that GAL’s services are no longer needed. If the parents agree, a hearing is not necessary, and the attorneys will submit an order releasing the GAL from his or her appointment. The GAL serves as an arm of the Court, which means the GAL is an advocate for the child and is considered a neutral attorney with respect to the parents. This means the GAL does not represent or advocate for either parent in a case. The purpose of the GAL is not to determine which parent is “right” or which parent is “wrong” but to make recommendations based on what is best for the child, regardless of the positions of either parent.
–Kathryn Terry, Attorney & Lupe Velazquez, Paralegal, March 2023