94 Children’s Legal Rights Journal [Vol. 37: 1 2017]
consultants/advisors/investigators should apply to the GAL, who had provided a report to the
trial court. 91 She relied on the provisions of the Kentucky Family Code that allowed the trial
court to “seek the advice of professional personnel” 92 and “order an investigation and report
concerning custodial arrangements,” 93 and that provided: “[c]ounsel may examine as a witness
any professional personnel consulted by the court.”94
Counsel for the GAL, on the other hand, argued that the GAL could not be called to testify as a
matter of professional responsibility. 95 He argued that, because the Kentucky Guardian Ad
Litem statute required all GALs to be practicing attorneys of the court, and the GAL was indeed
an attorney, the GAL would be in an ethically compromised position which would likely require
him to reveal client confidences96 and violate the mandate against attorneys testifying in their
own cases. 97
The Kentucky Court of Appeals recognized the conflict between the requirements of the GAL --
“Is the GAL acting as advocate for a client or as expert counselor to the court?” 98 -- and noted
that “[t]he ambiguity create[d] a clear potential for prejudice by precluding cross-examination of
a GAL by the parties whose interests are at issue and are the very subject matter of the report
prepared by the GAL at the behest of the Court.” 99 Still, while noting that the case highlighted
the conflict, and mentioning that the conflict “merits (indeed necessitates) the scrutiny of the
General Assembly and/or the Supreme Court to define the proper role of the GAL in child
91 Id. at 3.
92 KY. REV. STAT. ANN. § 403.290 (West, Westlaw through Ch. 7, 12, 13 of the 2017 Reg. Sess.).
93 KY. REV. STAT. ANN. § 403.300 (West, Westlaw through Ch. 7, 12, 13 of the 2017 Reg. Sess.).
94 KY. REV. STAT. ANN. § 403.290( 2) (West, Westlaw through Ch. 7, 12, 13 of the 2017 Reg. Sess.).
95 Morgan v. Getter, No. 2012-CA-000655-ME, 2013 Ky. App. Unpub. LEXIS 517, at 5-6 (Ct. App. Feb. 22,
96 Id. at 4-6.