to cross examination. 66 While there were alternate roles -- including Friend of the Court67 or
Investigator68 -- available for use within custody cases pursuant to statute, the use of these roles
had been discontinued; Kentucky had, as a practical matter, created a hybrid role where the GAL
served as both an attorney and a reporter to the court in custody matters.69This hybrid role was
challenged by the mother in Morgan v. Getter as a violation of the mother’s procedural due
process rights. 70
A. The Trial Court
The case arose in a Northern Kentucky family court. 71 The parties had two daughters born to the
marriage. 72 At the time of the divorce, the mother was granted custody and the father was
services ordered for the child or child’s family are being provided in a timely manner; A GAL must continue to
represent the child as long as the appointing authority retains jurisdiction over the child; Consistent with the rules of
Professional Responsibility, a GAL should identify the common interests among the parties and, if possible,
promote a cooperative resolution to the matter; A GAL should submit an oral or written report to the court as
ordered; and a GAL should advocate for the child’s best interests, but advise the court when the child disagrees with
the attorney’s assessment of the case.).
66 Confidentiality of Information, Ky. Sup. Ct. R. 3. 130( 1. 6)(a) (“A lawyer shall not reveal information relating to
the representation of a client.”); Ky. Sup. Ct. R. 3. 130( 3. 7)(a) (“A lawyer shall not act as advocate at a trial where
the lawyer is likely to be a necessary witness.”).
67 KY. REV. STAT. ANN. § 403.090( 4) (West, Westlaw through Ch. 7, 12, 13 of the 2017 Reg. Sess.) (“[T]he Friend
of Court . . . shall make such investigation as will enable the Friend of Court to ascertain the facts and circumstances
that will affect the rights and interests of the children.”); KY. REV. STAT. ANN. § 403.300 (West, Westlaw through
Ch. 7, 12, 13 of the 2017 Reg. Sess.) (court investigator investigates and makes recommendations concerning
custodial arrangements for the child; report may be received into evidence and the investigator may be called as a
witness); KY. REV. STAT. ANN. § 403.290 (West, Westlaw through Ch. 7, 12, 13 of the 2017 Reg. Sess.) (court may
appoint a professional advisor to the court for diagnosis or professional evaluation); FCRPP 6 (Opinions sought in
family matters may include custody evaluations, psychological evaluations, or “such other . . . opinions or advice
which the court deems appropriate.”).
68 KY. REV. STAT. ANN. § 403.300( 2) (West, Westlaw through Ch. 7, 12, 13 of the 2017 Reg. Sess.) (“In preparing
his report concerning a child, the investigator may consult any person who may have information about the child and
his potential custodial arrangements. Upon order of the court, the investigator may refer the child to professional
personnel for diagnosis. The investigator may consult with and obtain information from medical, psychiatric, or
other expert persons who have served the child in the past without obtaining the consent of the parent or the child’s
custodian; but the child’s consent must be obtained if he has reached the age of 16, unless the court finds that he
lacks mental capacity to consent.”).
69 Morgan, 441 S. W.3d at 97; See, e.g., S.G. v. D.C., 13 So.3d 269, 282 (Miss. 2009) (court may not appoint a GAL
to serve in the dual role of lawyer for the child and advisor to the court).
70 Morgan v. Getter, No. 2012-CA-000655-ME, slip. op. at 6 (Ky. Ct. App. Feb. 23, 2013), rev’d., Morgan v. Getter,
441 S. W.3d 94 (2014).
