kind of attorney role.” 123 The KYAAML Brief argued that the AAML Standards were consistent
with existing Kentucky Statutes.
Additionally, the KYAAML Brief argued that, experts who provide reports to the court must be
subject to cross examination; under FCRP 3( 4)(a), experts, such as a GAL, must provide the
court with a report must be subject to cross examination; if this examination is prohibited then
due process is violated. 124 The KYAAML Brief noted that the lack of differentiation between
professionals in the GAL and professional advisor roles brought about dangers in professional
ethics and requested clarity: “[T]he KYAAML requests this Court clearly establish that an
attorney who submits a recommendation be treated as an expert appointed by the Trial Court—
whether or not given the title of Guardian Ad Litem…” 125
After considering the arguments by the parties and Amici, the Kentucky Supreme Court agreed
that the role confusion was rooted in the varying rules and provisions that defined what
professionals could do on behalf of children in custody cases. 126 The Court also highlighted the
Rules of Professional Conduct that might be implicated if an attorney-GAL were allowed to be
123 Brief for the Kentucky Chapter of the American Academy of Matrimonial Lawyers as Amicus Curiae at 3,
Morgan v. Getter, 2013 WL 8610403 (Ky.).
124 Id. at 2.
125 Id. at 11.
126 Relevant provisions included KY. REV. STAT. ANN. 403.270 (West, Westlaw through Ch. 7, 12, 13 of the 2017
Reg. Sess.) (listing relevant factors related to the best interests of the child determination); FRCPP 6 (differentiating
“evaluator, counselor or other advisor” from GAL”); KY. REV. STAT. ANN. § 403.290 (West, Westlaw through Ch.
7, 12, 13 of the 2017 Reg. Sess.) (allowing the court to appoint a professional to assist the court); KRS § 403.300
(allowing the court to seek an investigation and report concerning custodial arrangement); and KY. REV. STAT. ANN.
§ 387.305 (West, Westlaw through Ch. 7, 12, 13 of the 2017 Reg. Sess.) (requiring that a GAL be a “practicing
attorney of the court,” who “attend[s] to the preparation of the case,” “advocate[s] for the client’s best interest in the
proceeding,” and whose duties include subpoenaing and calling witnesses).
127 Ky. Sup. Ct. R. 3. 130( 1. 1) (competent representation); Ky. Sup. Ct. R. 3. 130( 1. 4) (client with diminished
capacity); SCR 3. 130( 1. 6) (duty to maintain client confidences); Ky. Sup. Ct. R. 3. 130( 3. 7) (attorney is not to act as
advocate in a proceeding in which he/she is likely to be called as a witness).