Appointment of Guardian Ad Litem Not Required to Advance a Spouse’s Litigation Tactics

A guardian ad litem can serve a crucial role during the divorce process. While appointment is required in any case involving child abuse or neglect allegations, the court has the discretion to assign a guardian ad litem in cases where custody, visitation, or support are disputed. However, as recently held by the Missouri Court of Appeals for the Western District, a guardian ad litem is not required simply to advance a spouse’s litigation tactics.

What is a Guardian Ad Litem?

A guardian ad litem is an attorney who is appointed by the court to represent a child or children. Although the parents are responsible for paying their fees, they do not represent, advocate for, or provide legal counsel to the parents. In cases involving abuse or neglect where their appointment is mandatory, part of the guardian ad litem’s job is to investigate the allegations and report their findings to the court.

Other duties and responsibilities of a guardian ad litem can include the following:

• Advocate a position that is in the child’s best interests
• Fully participate in any court proceedings
• Examine, cross-examine, and subpoena witnesses
• Offer testimony in court
• File petitions, motions, parenting plans, responses, and objections

A guardian ad litem may also report the child’s wishes that were conveyed to them — and what they believe to be in the best interests of the child. Importantly, they must maintain independent judgment in performing their duties.

The Court’s Decision in Craig v. Craig

A recent case brought for appellate review, Craig v. Craig, concerned a child support dispute arising from a divorce matter. In this case, the husband appealed the trial court’s dissolution judgment on several points. While the court declined to review five of the appellant’s claims because he failed to properly preserve them, he argued in the remaining claim that the trial court misapplied the law in failing to appoint a guardian ad litem.

The Guardian Ad Litem Appointment

Under Missouri law, the court must appoint a guardian ad litem in any proceeding involving child abuse or neglect, which the appellate court held was not an issue raised in the case. The appointment is triggered by child abuse allegations that are specifically made in a pleading — they cannot be raised by introducing new evidence at trial. Applying relevant case law, the court reasoned that the husband did not allege any abuse, except for in the wife’s discovery responses. In fact, the court noted that evidence at the trial level suggested that the husband was verbally abusive to both his wife and children.

Quoting the long-standing case, Van Pelt v. Van Pelt, the court held that “a parent may not protest the non-appointment of a guardian . . . on the basis that the parent’s interests were harmed, when no harm to the child is shown.” The court further opined that the appointment of a guardian ad litem is not meant to benefit either spouse in a divorce proceeding or “advance the litigation tactics of a [spouse].” (Rombach v. Rombach). Since the husband did not allege any harm resulted to the children because a guardian ad litem was not appointed, the court determined his claim was without merit.

Appellant’s Failure to Preserve Claims

Another key takeaway from Craig v. Craig that should be emphasized is the court’s holding regarding the appellant’s failure to preserve his claims, which resulted in them being waived. It’s essential to understand that in divorces, and any other civil matters, there are strict procedural measures that must be followed in order to properly preserve claims for appellate review. An appellate court will generally decline to review a point if it has not been properly preserved.

There are different procedural mechanisms to preserve certain claims. For instance, if a point that could have been raised as an affirmative defense is not pled, it is typically considered waived. In addition, if an argument was advanced in a brief on appeal, but not raised in the point upon which it relied, the court will not address it. A court may only make an exception and review for “plain error” if substantial injustice would occur by leaving an error uncorrected.

Contact an Experienced Kansas City Divorce Attorney

Navigating the legal process associated with divorce can be overwhelming — and it’s critical to have the guidance of an experienced attorney every step of the way to avoid any potential pitfalls that could impact the outcome of your case. Divorce and family law attorney Mark A. Wortman provides representation to clients in the greater Kansas City, Missouri area who are facing divorce and works diligently to ensure favorable results. To schedule a confidential consultation to learn how he can assist you, please contact him today online or by calling (816) 523-6100.