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What To Do When… You Are Considering A Guardian Ad Litem.
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WTDW Podcast | Episode 45: What To Do When… You Are Considering A Guardian Ad Litem.
What To Do When… Intro 00:01
Welcome to What To Do When… A podcast from real lawyers with real perspective, where we explore a variety of legal issues and scenarios. Each week we focus on a new topic and discuss what to do when and if any of these legal scenarios ever happened to you or a loved one. With over 40 years of combined legal experience, our hosts offer their unique perspectives and insights on a range of real life legal situations.
Jackie Critzer 0:29
Hey, welcome back. It’s been a while we’re here at Critzer Cardani doing our podcast in Richmond, Virginia. I’m Jackie.
Scott Cardani 0:35
I’m Scott. Jackie, what’s on the docket for today?
Jackie Critzer 0:37
Now what to do when you are considering a guardian ad litem for your case?
Scott Cardani 0:42
Jokingly – I wouldn’t know anything about that.
Jackie Critzer 0:47
Well, let’s start with what a guardian is asking of you. Right. So sometimes do you send a question or Scott’s a guardian ad litem, in some cases, he’s appointed, in some cases. I’ve seen a lot of guardian sending a questionnaire some are really short. And it would just ask for sort of background information who lives in your home? And how long have you lived there? Where do you work? And does anybody living in your home have any sort of record of criminal record felony record that sort of that? So I’ve seen those sorts of questionnaires. But do you? Do you send a questionnaire?
Scott Cardani 1:23
I do sometimes. It depends on the matter and the intensity. I try to be smart about it in a sense of sometimes I know, the parents may not be able to handle a questionnaire, quite frankly, and based on circumstances, maybe neither one was representative. And it’s better than just go ask the questions personally. So I think you have to be mindful that I think a lot of people just send them out and don’t think about the clientele which they’re working with. And I think that’s important as a guardian item. I think the other issue, when you do get a questionnaire, you need to really look at it and have your attorney look at it, because I’m finding more and more that people are asking questions that really aren’t relevant. And the only thing I can gather from that is there some kind of political ideology, or some kind of something there, that they’re trying to gain or gain, gain information about you that isn’t really relative. And I’ll, and I know people gonna cringe about this, but a lot of, I’ve seen this thing lately popping up about whether you have guns in your house. Well, whether I have guns or not, doesn’t make me a parent or not a parent or good parent or anything. And I know their safety issues. But if the other parent, for instance, Jackie and I are in a divorce. Jackie hates my guts, and she didn’t bring up that I waved my guns around and leave them unloaded or loaded guns on the table and all that stuff. Well, that is a mute mood issue. And I think sometimes people are like, they hate guns. So they want to know whether you have guns or not. And I think that’s a problem. I think that I really do believe that kind of stuff. And those kinds of questions can really create a bias.
Jackie Critzer 2:59
Well, it can slant… it can, not that it does, but it can slant your case in a direction you don’t want it to go. It may have zero to do with the substance of your case. I’m not we’re not talking about cases where there’s domestic violence, and there’s accusations of like Scott was saying, we’re talking about where it’s not an issue, and it’s in the questionnaire and and why.
Scott Cardani 3:20
Yeah, and this goes back to what we were taught what we wanted to say a little bit about, you know, their, you know, can you pick your guardian litem? The answer is, it depends what court.
Jackie Critzer 3:33
Scott Cardani 3:34
And so if you’re in juvenile court, they’re usually assigned. And if you’re in circuit court, the attorneys usually get together and try to pick somebody on the list. But my point is this, even if you’re in juvenile court, as an attorney, knowing who your client is, is so important, because knowing who the Guardian litem is, are is important, too. So are they gonna rub wrong or so one very conservative and one very, very liberal. And, you know, that can be a very dangerous combination, because I’m sorry that I see it all the time where people don’t hide their agendas, or whatever it is. And I’m like, what, that’s it’s not supposed to be folks. I’m not saying that supposed to be. It shouldn’t even be in the conversation. I mean, whether the people voted for Trump or Biden or Jimmy, that shouldn’t even matter, right. So when we get into these things we’ve got, you know, for instance, you got somebody who homeschools what is the guardian lightest perspective on homeschool? Do you know them? Do you know what their perspective is? I’m telling you not every Guardian litem thinks homeschool is a good thing. Matter of fact, a lot of think it’s hokey, and they produce hokey kids and all this kind of stuff, which, quite frankly, isn’t true. But when you have that perspective, it affects your presentation of the case and your investigation of the case. So those things really matter. Or if you have a client who’s really super liberal on the other side, you know, you in support things that, you know the Guardian litem doesn’t. So for sure it can really be a conflict. And as a, as an attorney especially, or as a citizen, and you know, Guardian litems being appointed, you kind of want to be mindful that at minimal and get as much involved in as you can because for me representing somebody, when I’m their attorney, I want to know these things. And you know, the first thing people ask me, Do you know, the guidelines? Yep, I know, you know, and, and helping your client navigate that, you know, what you should say what you said and say what you, sometimes you’re offering things you don’t need to offer, they may not even ask, and you’re sitting there telling Him your life story, which I’m like, that’s not what this is about.
Jackie Critzer 5:45
Well, and so I think part of the reason that this is so important is because number one, sometimes you don’t get to pick, right? Yes, maybe the person that you’ve hired to represent you in the case comes in after you represented yourself at the first hearing. And there was a guardian appointed, and there were no attorneys involved at that point. And it’s Joe Schmo. And you say, Hey, Scott, I’ve got a guardian ad litem. It’s Joe Schmo, what do you think? Okay, well, this is what I think we need to be able to navigate this in certain ways and protect information or whatnot, you just need to know something, the person that you’re hiring, has some insight into the Guardian ad litem. And sometimes it’s somebody we’ve never heard that. I’ve heard of that person, because the list changes pretty regularly. There’s always people being added, and that’s okay. Also. But again, you’ve got to have someone who’s willing to stand up against a guardian ad litem, if the report or if the investigation really hasn’t been thorough, or or maybe it’s just not for your clients. So Scott, and I have and plenty of the attorneys in the area have gone against a guardians report. So guardian, gets involved in a case and files a report and makes a recommendation to the court. And there are some attorneys who say, Oh, I’m sorry, client, I’m not going against the Guardians. Because what they say goes and it’s just, you know, you can’t go against the Guardian, it’s going to be bad for you in court. And then you’ve got some other attorneys like Scott and I, and others here in the Richmond area, who will say, I know what your recommendation is. But I think the evidence supports a different outcome.
Scott Cardani 7:19
Jackie Critzer 7:19
And you put on the evidence and let the judge just the Guardian really isn’t the end all to be all.
Scott Cardani 7:25
They shouldn’t be.
Jackie Critzer 7:26
But they’re important. Don’t get me wrong. I have lots of my friends regarding Scott’s a guardian, I think that they have a valuable place in cases. And sometimes I don’t agree with them. And that’s okay. That’s why we have court is because we don’t always agree. And so I think it’s important for you and your attorney to understand that there are times when when you don’t agree with the Guardians recommendation. And the evidence supports a different outcome than the Guardians recommendation and putting that on in your case. And how critical that is, versus you’re saying, Well, you know, they did their they did their investigation, we’re not going against it. Very different perspective on how to proceed in the case.
Scott Cardani 8:05
I think some attorneys just go against the grain later, no matter what. So there’s that first.
Jackie Critzer 8:10
Which is not necessarily a good thing, either.
Scott Cardani 8:13
And I think both Jack and I agree that usually, you don’t want to go against the Guardian light unless you have a really good reason.
Jackie Critzer 8:19
Oh, for sure.
Scott Cardani 8:20
But at the same time, it’s really, as an attorney, it’s about putting on your case. And if you believe in your case, like you should, and you’ve done the work, then your case should stand up in court. And you know, that doesn’t mean you’re always going to win. But if you have the evidence and have the case, then you know that Guardian litems opinion, that point shouldn’t persuade you from moving toward. A really good guardian ad litem is going to try to look for middle ground, because quite frankly, there should be always middle ground of some sort. Because as judges always say, nobody’s going to be happy.
Jackie Critzer 8:53
Scott Cardani 8:54
You know, you’re fighting. So you know, sometimes you got to take a deep breath and at least listen to the recommendation. And, you know, I see parents, even my own parents sometimes like getting confrontation with the Guardian ad Litem, dumbest thing in the world. Even if you disagree with them, it’s not the time to be confrontational. It’s like I tell people, You may hate social services, but when they take your kid is not the time to get in a fight with them.
Jackie Critzer 9:15
Scott Cardani 9:16
You know, there’s a time and a place and maybe you think the garden random is a horrific person has done all those things. But during your case, it’s not the time for you to be fighting with them. You know, you can speak truth. I never say don’t speak truth and ever say don’t be yourself, but don’t get, you don’t need to be defensive, confrontational, those things that will put a wedge between anything you’re saying and them hearing you. So it’s okay to say, well, I don’t agree with that position. That’s okay. You should say what you mean and mean what you say. But I see too often where I don’t know what it is. But sometimes it’s I hear people arguing in a guardian litem interview and I’m like, you don’t even know what you’re arguing about that. You’re just upset. And you’re actually making this worse. Just listen to them. Even if you don’t, sometimes it’s okay not to agree to just listen to him go. Okay, I hear you. Let them know you’re hearing them, it’s okay to let them know you hear them. There’s nothing wrong with that. I mean, everybody deserves to be heard. That doesn’t mean you have to agree with them.
Jackie Critzer 10:13
What do you find that a lot of the tension between some of your clients or even, and when you’re the Guardian and the tension that you have with the party, so on both both heads of that, on both sides of that coin heads and tails, that the conflict really comes from accusations that either the Guardian didn’t do their job, or did their job incorrectly or something about the Guardians performance of their duties?
Scott Cardani 10:39
Yeah, let’s go through that. I think that’s really important, because I think a lot of people have perspective that Guardian litem is like a social worker.
Jackie Critzer 10:46
Scott Cardani 10:47
And they’re not their lawyers, their job is to represent the child’s best interest in court. And there are, there is a list of things they’re supposed to do. And you can get that list. I don’t have in front of me, unfortunately, it’s probably should have grabbed that. But, you know, I don’t think that’s as important. There is a list of things they’re supposed to do, but they’re more general than people really understand. You know, having contact with the child before court is super important.
Jackie Critzer 11:09
Sure, but that depends on the age of the child, right?
Scott Cardani 11:13
Not really, even if it’s an infant, you’re supposed to have contact with child. I like you would think sometimes that’s kind of dumb, but what you’re doing in that case, I think, is making sure the child is safe in the environment they’re in. I get that a little bit but so, but that doesn’t mean that every guard line is gonna do a home study of everybody’s house.
Jackie Critzer 11:31
So why – I mean, because I’ve heard that a lot. Oh, they didn’t, they never came to my house. They they’re not doing their job. Well. And my response is, it’s your house in question? Did the other party say?
Scott Cardani 11:44
So that’s exactly right. I mean, for me, if nobody’s complained about the other person’s house, why am I gonna go pick up cushions and look for things that. I just find trying to I try to take Guardian ad litem like an onion, you peel one layer at a time. You peel as many layers as you need to, to get to the truth and get to a place where everybody is agreeing. But sometimes just peel that onion down to nothing, for no reason. Looking for something causes more acrimony in the end than it should. Meaning sometimes your job is a garden line was not to raise acrimony in the case, your job is to bring some kind of peace and, and feel that the child is being represented that if it’s possible, obviously, if it can’t be that, and there’s a bad situation, you need to go gun guns blazing and do your job and represent that job. But my gosh, that’s the, you know, we have these things. And sometimes the other thing that’s really interesting to me is, I’ll have clients say to me, well, the Guardian ad litem never talked to me. I’m like, Yeah, cuz I talk to him every day.
Jackie Critzer 12:36
Scott Cardani 12:37
You know, I represent you. My job is to communicate. And sometimes I feel like I’m a little better communicator. I know how to communicate without that hostility there. So I’m talking to the Guardian litem all the time or so sometimes that contact is minimal, because your attorney is very good and doing their job. I know sometimes it’s true. They never talked to either one. I can’t tell you how many times I’ve walked in the court, looked at the other lawyer and said to him, I reached out to you No, no, no. And then still, somebody stands up and gives a recommendation.
Jackie Critzer 13:06
Right. I’ve seen that as well.
Scott Cardani 13:08
And it’s horrific. And then there’s times I’ve been a guardian litem, and, quite frankly, got a call at Tuesday, and I have a case on Wednesday, and I just totally slipped through the cracks. And I’ve gone to the court and said, You know what, Judge, I can’t make a recommendation today. I haven’t done what I needed to do. I haven’t done my job. And I’m very sorry about that. It doesn’t happen often. But it does happen, especially cases that come in six months from now and you don’t hear a peep from anybody for six months. And there’s not really hot contested case… is that excuse? No, I’m just saying those cases…
Jackie Critzer 13:39
Scott Cardani 13:40
Sometimes just slip through the cracks. And I say really didn’t get docketed. Sometimes, when I get a case for guardian ad litem, I put in every month or whatever it is I put in ticklers to look at the case and look at the file. And sometimes if that didn’t get done, the case pops up in June. And I haven’t looked at it since, you know, January and I’m like, Oh my gosh. So those are real issues. But you know, the point is you need to be communicating with your lawyer make sure that the communication is happening as long as the communication is happening, how it happens, I think sort of irrelevant.
Jackie Critzer 14:14
Okay. So when someone is frustrated that their guardian ad litem hasn’t done their job, quote, unquote, what’s your best response? What would you say to our listeners, about what a guardians job really ought to be and whether the person’s frustration sometimes is on point and sometimes really is off point.
Scott Cardani 14:33
But that that’s exactly that sometimes it’s on point. And sometimes it’s often point off point, and you need to really, probably have a lawyer to help you through that, because you really don’t know. But again, the number one job of a lawyer is to represent the best interest of the child in court, and to make sure that child’s interests are represented in the court. That’s the whole reason that the Guardian letter came about because we’re starting to have cases where the child’s life is going to be changed by this decision. And they need to have a voice in that process in the court process. You know, as I said, it’s not, again, it’s not a social worker, it’s not me, making sure the kid has food and making sure the kids going to school, those may become issues. But my point is, I think some people take it like as a glorified social worker and expected people to do things. That’s not it. So there are very legitimate complaints. And sometimes you have to you and your attorney may have to move to have the Guardian litem removed, or move that his testimony. I guess you could file motional, eliminare. haven’t done that yet. But that might be a way to actually handle it. Sometimes it’s so intimate, he didn’t do anything. And his recommendation shouldn’t even be heard in the court. And that’s really harsh. And you know, and for lawyers, that’s seems harsh for us, but you got it, you’ve got to represent your client. And, you know, Guardian lions are not paid well. That’s a big misnomer. And I said circuit coordinator hired, it’s a little different. But so it can be a struggle, excuse me. But they’re required to do their job, they’re required to see the child, they’re required to make sure, you know, their school issues. And, you know, a lot of people automatically add all the school records, and that’s okay. I mean, that’s, that’s how you want to be a lawyer. That’s fine. I tend to not get in the school unless the one of the parents is saying there’s a school issue. You know, I just tend to do it that way. I try to go, Okay, folks, you’re having a problem. There’s two of you give me your side, what are the issues you give me your side and also investigate those issues? You know, and try not to create issues that aren’t there? Sure. Because quite frankly, you can create issues that are lifetime issues for that child that you created. That would have never been there had you not said anything, because of a perspective that you have you think something’s important, and maybe neither the parents whatever thought was important. So you’ve got to be smart about that. And but you know, it’s important that people do their job. And everybody does it differently. I’m not crushing how people do their job. But it is important to do it.
Jackie Critzer 16:59
It is important to do it. So when there’s a guardian ad litem involved in your case, you really need to walk it through with your attorney, if you don’t have an attorney, it’s really important that you not just look at Google and figure out what the Guardian was supposed to do, whether they quote unquote, done their job. I think, Scott and I would agree that that lots and lots of these guardians are great at what they do. And because they they love families, and they love children. Because it’s not, it’s not a huge paycheck, at the end of the day, when you’re a guardian. They do it because they love it. And a lot of them do a fantastic job. And there are often times that I asked for a guardian ad litem, because I know I need someone to come in and be a voice for the 10 year old or the 15 year old, but I’m not going to call into court, I’m not going to have this child come and testify in front of their mom and dad that that is almost never the appropriate action, almost. So you really you know, having the right advocate for your child doesn’t mean that it’s the decision you’re gonna like, doesn’t mean it’s the decision that you’re going to think is the right decision. But having a good person representing the best interest of your child is the whole point of having a guardian ad litem. So our takeaways today, Scott, what do you got?
Scott Cardani 18:12
Well, I think the first thing is the questions that you want to ask at the beginning and getting together with your lawyer and finding out making sure your lawyer knows who you are as a person, what’s important to you. And you also, you know, figuring out what’s important to the Guardian litem, and those kinds of things. And you can do that a lot with that questionnaire you can do, and you can choose maybe not through your lawyer not to answer some of those questions, because they’re irrelevant. And that’s okay. I mean, we get I won’t go there discovery all the time is there’s questions that aren’t relevant. So that’s okay. You can do that.
Jackie Critzer 18:41
But be sure, you know, to go through it with your attorney. Second issue is that it is a common misconception that the Guardian is a social worker, social worker, the courts gonna always follow the Guardians recommendation. And if finding an attorney that is willing to pay attention, pay close enough attention to what’s going on in the case, and to stand up and argue against maybe what the Guardian is recommending is important. I have had some clients, I had to leave my last attorney because they said the Guardians made the recommendation, and they’re not going to argue against it. Sometimes, you shouldn’t, right, sometimes that’s a good recommendation. And the attorney recognizes it and tries to say, look, I think it’s the right recommendation in your case. And so you’ll be paying close attention to that. And sometimes it’s just not. Sometimes you need to put on the evidence of finding someone who is willing to put on the evidence and let the court decide. Is the second thing we want you to think about and third?
Scott Cardani 19:45
Third, I don’t remember to be honest.
Jackie Critzer 19:47
Did they do their job?
Scott Cardani 19:48
Oh… did they do their jobs? Sorry. I apologize. But yeah, did they do your job? And remember, that’s kind of a question that needs to be explored. And it’s not always done maybe the way you think it should be done. But that doesn’t mean they didn’t do their job. And, you know, based on experience, like, for me, I was a school teacher, when I walk into a school, I can look at records probably differently than other people showing because I know what I’m looking for. And I know what I want to look for. And, you know, there’s things like that. So I may look at a record for five minutes and get what I need from it. So, you know, my point is, the way we do our job isn’t that important, it’s that they do their job and that you know, they’re doing their job is important. And I hear that complaint more than anything that the Guardian litem didn’t do his job. And that’s mostly because the person doesn’t feel connected to that Guardian litem, in any way, shape, or form. And they feel left out of the process.
And that’s not the guardians job.
Jackie Critzer 20:40
Yeah. And it really isn’t the Guardians job, The Guardian litem’s job isn’t to connect with you, it’s actually connect with your child. And let me say that I think that’s really important, too. I’ll leave it with that, it’s really important that the guardian does connect with the child. And if you’re not connecting with the child as a guardian ad litem, and let me just say this, I think you should ask to be removed. If you’re not being able to communicate with that child and have a conversation with that child where they’re in, sometimes, the child’s not gonna talk to anybody. And I get that, but I can’t tell you how many times I went to the judge and said, Your Honor, with all due respect, we just got off on the wrong foot. And we’ve never been able to fix that I can’t make a recommendation because I really don’t know what he wants, or she wants. Or maybe she needs somebody else. That’s more, I don’t have those skills that are needed. I don’t have that background that is needed. Whatever it is, I think it’s so important as a guardian ad litem to recognize that and be humble enough to say, You know what, I’m not doing this kid any service by standing here and opinionating, going on about what this child needs. Making the recommendation that I have no idea what the child… The reasonable preference with the child is there for a reason. But you have to be able to reasonably communicate with that child to get that preference.
It’s a heavy duty topic, and it’s really focused on custody and right now. It’s essentially focused on custody and visitation.
Scott Cardani 22:00
Visitation can be there too. But you’re right. I mean, it’s more. visitation is always important. They always go together. And you know, it’s both. But remember, a guardian ad litem is there to help you. But you got to make sure they’re there to help you.
Jackie Critzer 22:11
And we enjoy answering your questions. So if you have any questions about whether you think your guardian is or isn’t doing their job, or you need some help navigating a case, where there isn’t a guardian, but you want one, give us a call. Our information is certainly available to you at the end of this podcast, and it’s CCLawVA.com is where you can find us on [email protected] is the email. We’ll be glad to answer questions and hopefully address it in the next one in the next podcast.
Scott Cardani 22:38
Like and subscribe… :).
Jackie Critzer 22:39
Have a good day.
What To Do When… Outro 22:41
We hope you’ve enjoyed this episode of What To Do When… For more episodes, be sure to subscribe to our podcast and we encourage you to check archives to listen to previous topics. Tune in next week for a new episode and some fresh perspective from Critzer Cardani.
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