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the attorneys performing these roles are often asked to perform both reporting duties as agents of
the court and advocacy duties on behalf of the child.
Scholars and advocates have argued that it is improper for a child’s attorney-GAL to also play
the role of reporter to the court in child custody matters. 14 Scholars are concerned that allowing
an attorney-GAL to present an opinion about the outcome of a proceeding, through testimony or
report, raises the attorney-GAL to the status reserved for the court, 15 and may raise evidentiary
issues, 16 professional responsibility concerns, 17 and/or due process violations. 18 In some
jurisdictions, GAL Reports are automatically admitted. 19 Parents may be allowed to cross
examine a GAL in one jurisdiction and not another, 20 despite the fact the GAL serves the best
interests of the child (not the parents' interests) in both jurisdictions. 21
14 See, e.g., ABA Standard, supra note 3, at III.B (recommending that attorneys for the child not make
recommendations, file a report or testify in court).
15 See Pace v. Pace, 22 P.3d 861, 868-70 (Wyo. 2001) (guardian ad litem who was licensed attorney impermissibly
presented custody recommendation to court in form of sworn testimony and trial court erred in admitting testimony)
(” . . . guardians ad litem must take the necessary steps to assure sufficient evidence is presented at trial either by
introducing the evidence themselves or assuring counsel for one or both parents are prepared to do so. Finally,
guardians ad litem should present their recommendations to the court in the form of closing argument and not
through personal testimony.”).
16 See, e.g., Linda D. Elrod, Raising the Bar for Lawyers Who Represent Children: ABA Standards of Practice for
Custody Cases, 37 FAM. L. Q. 105, 116-18 (2003).
18 See Emily Gleiss, The Due Process Rights of Parents to Cross-Examine Guardians Ad Litem in Custody Disputes:
The Reality and the Ideal, 94 MINN. L. REV. 2103, 2104 (2010).
19 MASS. GEN. ANN. LAWS ch. 215, § 56A (West, Westlaw through 2016 Legis. Sess.) (“Said guardian ad litem shall,
before final judgment or decree in such proceeding, report in writing to the court the results of the investigation, and
such report shall be open to inspection to all the parties in such proceeding or their attorneys.”).
20 See WIS. STAT. ANN. § 767.407 (West 2016) (defining the appointment and responsibilities of a guardian ad
litem); Hollister v. Hollister, 496 N.W.2d 642, 644-45 (Wis. Ct. App. 1992) (parent not entitled to cross examine
guardian ad litem); See also Gilmore v. Gilmore, 341 N.E.2d 655, 659 (Mass. 1976) (the right to cross-examine a
guardian ad litem in a custody proceeding is guaranteed regardless of whether the parties consent to the
21 UNIF. MARRIAGE AND DIVORCE ACT § 402, 9A U.L.A. 561 (1987) (“The court shall determine custody in
accordance with the best interest of the child. . . [and shall consider] all relevant factors, including the parents'
wishes, the child's wishes, the child's relationships with the significant people in his life, the child's “adjustment to
his home, school, and community,” and “the mental and physical health of all individuals involved.”).