custody cases,” 100 the Kentucky Court of Appeals held that any error was harmless and reversal
was not warranted. 101
C. The Kentucky Supreme Court
After the Court of Appeals ruling, the mother filed a discretionary appeal to the Kentucky
Supreme Court. 102 In her Appellate Brief, the mother argued that the trial court committed
reversible error when it required the GAL to serve in two conflicting roles and thereby denied the
mother her right of due process. 103 In addition, the mother indicated that the “Kentucky Supreme
Court ha[d] the unique opportunity to clarify and define the roles and responsibilities of a GAL
appointed for a minor in a circuit court custody action.” Citing various other state models, 104 the
mother argued against the hybrid attorney-GAL model as a violation of her due process rights.
She asked that the Court take notice that other jurisdictions allowed for cross examination or
some kind of redress if the GAL ma[de] a written recommendation to the court. 105 She proposed
three potential roles for child advocates in custody matters: first, an advisor to the trial court
101 The court noted that “the thoroughness of the testimony at the hearing – that of both the child and that of the
other witnesses – sufficed as adequate basis for the court’s decision.” In addition, “it [did] not appear that the court
relied heavily on the GAL Report.” Id. at 7.
102 Morgan, 441 S.W.3d at 98.
104 The appellate brief directs the Kentucky Supreme Court to guidance from other courts. Brief of the Guardian ad
Litem at 20, Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014) (No. 2013-CA-000655) 2013 Ky. App. Unpub. LEXIS
517, at 5-6 (Ct. App. Feb. 22, 2013); 750 ILL. COMP. STAT. 5/506 allows for attorney, GAL or child representative
and the statute sets out duties of each – if the GAL submits a report with recommendations to the court, he or she
may be called to testify; S.D. CODIFIED LAWS § 63-3-80 lists the responsibilities of a GAL as including submitting a
report and being subject to cross-examination; Florida provides that the same person cannot serve as both attorney
for the child and GAL, and that “it is a fundamental right in this country to confront one’s accuser and to examine
evidence the trial court relies upon to make a decision. The parent in a change of custody case must be allowed an
opportunity to rebut the conclusions of the report and to cross-examine the preparer.”; Leinenbach v. Leinenbach,
634 So.2d 252, 253 (Fla. Dist. Ct. App. 1994); Clayman v. Clayman, 536 So.2d 358, 359 (Fla. Dist. Ct. App. 1988)
(citing In re Gregory, 313 So.2d 735 (Fla. 1975)); TEX. FAM. CODE ANN. § 107.002 permits a GAL to submit a
report to the court and requires that the GAL be subject to examination as to the contents of the report and as to the
child’s best interests; see also OHIO SUP. R. 48 allowing for appointment of a GAL or a GAL and attorney for the
child -- when the GAL makes a report, the GAL shall be available to testify.
105 Appellate brief at 20, Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014) (No. 2013-CA-000655) 2013 Ky. App.
Unpub. LEXIS 517, at 5-6 (Ct. App. Feb. 22, 2013).