Summary
The Kentucky Supreme Court held that a guardian ad litem in a custody proceeding may not serve simultaneously as the court’s investigator and the child’s attorney or representative. The court concluded that the trial court erred by relying on the GAL’s investigative report and recommendation while preventing the opposing party from cross-examining the GAL. Although the custody dispute became moot when the child turned eighteen, the court reviewed the issue under the public-interest exception to mootness because the GAL’s proper role was a recurring issue of substantial public importance.
Topics
Practice areas
Questions Presented
- Whether the appeal became moot when the child turned eighteen and, if so, whether the public-interest exception permitted review.
- What role a guardian ad litem may properly play in a Kentucky domestic custody proceeding.
- Whether a trial court violates a parent's due-process rights by admitting a GAL's investigative report and recommendation while denying the parent the opportunity to cross-examine the GAL.
- Whether a GAL appointed to represent a child in a custody proceeding advocates the child's wishes or the child's best interest.
Holdings
- Although Morgan's custody appeal became moot when the child turned eighteen, the Supreme Court could review the GAL issue under a distinct public-interest exception to mootness.
- A guardian ad litem appointed to represent a child in a domestic custody proceeding may not simultaneously serve as the court's de facto friend-of-the-court investigator who files a factual report and custody recommendation.
- When a GAL or other court-appointed person authors an evidentiary report upon which the fact finder may rely, the parties in a domestic custody proceeding have a due-process right to cross-examine the report's author.
- A GAL appointed to represent a child in a Kentucky domestic custody proceeding represents the child's best interest, not necessarily the child's stated wishes.
Key quotations
“We conclude, therefore, that in domestic custody proceedings, the parties’ right to due process includes the right to cross-examine the authors, including so-called GALs, of evidentiary reports upon which the fact finder is entitled to rely.” (at 112)
“We agree that an attorney should not be asked to serve simultaneously as both a de facto FOC investigator on the court’s behalf and a GAL attorney for the children involved.” (at 113-14)
“The trial court’s comingling of two distinct roles in this case — having the GAL investigate and report as though he were an FOC, but shielding him as a GAL from cross-examination — was erroneous and infringed upon Morgan’s right to due process.” (at 118-19)
Factual background
After the parties' marriage was dissolved, Morgan was named sole custodian of their two daughters, with Getter receiving visitation. Getter later petitioned to modify custody of the younger daughter, alleging abuse by Morgan; Getter was living in Florida, while Morgan remained in Kentucky. The trial court appointed a guardian ad litem who interviewed the family, investigated the circumstances, filed a report recommending that the child live with Getter, and was treated both as an investigator for the court and as the child's representative. The court admitted the report but refused Morgan's request to call and cross-examine the GAL, then modified custody in Getter's favor.
Procedural history
The Campbell Circuit Court, Family Court Division, appointed a guardian ad litem, admitted the GAL's investigative report and recommendation, denied Morgan the opportunity to cross-examine the GAL, and modified custody in favor of Getter. The Court of Appeals affirmed without deciding whether the trial court's treatment of the GAL was erroneous. The Supreme Court granted discretionary review, held that the case was moot but reviewable under the public-interest exception, and vacated both the Court of Appeals opinion and the trial court's final custody order.