100 Children’s Legal Rights Journal [Vol. 37: 1 2017]
The Court recognized that, until its decision in Morgan, Kentucky law had not clearly addressed
concerns as to differing definitions of the GAL, requiring the GAL to serve as an investigator for
the court, a lawyer appointed to represent the child, an advocate for the best interests of the child,
a facilitator/mediator, or some combination. 128 It recognized that, historically, GALs had been
asked to blur their role by both litigating on behalf of the child and investigating/reporting for the
trial court. 129 The court acknowledged that the hybrid role could lead to a violation of the
parties’ due process rights. 130
While counsel for the GAL and amici had advocated for the Supreme Court to adopt a traditional
attorney role, the court only partially adopted their request. 131 The Court clarified that the
Kentucky GAL is an attorney who should, therefore, not file reports or make
recommendations. 132 Doing so would make the GAL both an attorney and an
investigator/reporter, which would be improper. 133
The Court in Morgan decided that the proper role of counsel for children in Kentucky custody
matters is as a best interests attorney, referred to as a GAL; pursuant to Morgan, the GAL is now
explicitly the representative of the child’s best interests, rooted in the best interests factors. 134
The GAL is an attorney who is subject to the Rules of Professional Conduct, including
competence, confidentiality, the duty not to be an advocate in cases where the GAL is likely to
128 Morgan, 441 S.W.3d at 106.
131 Id. at 104.
132 Id. at 118.
133 Morgan, 441 S.W.3d at 119.
134 KY. REV. STAT. ANN. § 403.270( 2) (West, Westlaw through Ch. 7, 12, 13 of the 2017 Reg. Sess.) (lists best
interests factors, including wishes of the parents or de facto custodian; wishes of the child; interaction of the child
with parents, siblings and others significantly impacting the child’s best interests; connection to home, school, and
community; mental and physical health of all individuals involved; evidence of domestic violence; intent of parent
placing the child with a de facto custodian; and circumstances of the child being placed with a de facto custodian).