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responsibilities of regular counsel. 163 The court made it clear that the GAL could not file a report
or testify, 164 but the trial court had used the GAL’s report as the basis for its findings on custody
modification. 165 Because the trial court’s order merged the two roles and used the same person
in both roles, the parents’ due process rights were compromised because the GAL had served as
both advocate and witness. 166 The case was reversed and remanded to the trial court for
compliance with Morgan. 167
In Dhawan v. Naumcheko, the GAL submitted a report to the court making a custody
recommendation, but the GAL was not subject to cross examination. 168 The trial court’s order
contained language requiring the GAL to obtain information from the child and report it to the
court. 169 The trial court admitted that the GAL was acting in some respects as a de facto Friend
of the Court. On appeal, the appellate court concluded that the parties have a due process right to
cross examine the GAL to the extent that the GAL acted in that capacity. The court noted that, if
a trial court accepts a report from the GAL, the GAL must testify and be subject to cross
examination, but only as to the specific facts that were presented to the court in the GAL’s
capacity as a Friend of the Court
The reasoning in Morgan has now also been extended to child protection matters in Kentucky. 170
S.E.A. v. R.J.G. 171 involved both an abuse-neglect-dependency action and a private custody
163 Id. at 2.
164 Id. at 3.
166 Id. at 3.
167 Id. at 4.
168 Dhawan v. Naumchenko, 2014-CA-000088-MR, 2015 WL 3533214, at 1 (Ky. App. June 5, 2015).
169 Id. at 2.
170 Morgan, 441 S.W.3d at 97.
171 S.E.A. v. R.J.G., 470 S.W.3d 739 (Ky. Ct. App. 2015).