When contentious divorce litigation arises, Florida courts are designed by statute to protect the interests of the children in the case and enter an Order in their best interest. To that end, children are very rarely permitted to testify before the Court, even though their interests are often the subject to that hearing; under rare circumstances, children will be permitted to testify and such testimony is avoided at all reasonable costs.
The Florida Legislature and Florida Courts recognize the stress and emotional toll divorce litigation places on adults, who are typically more capable of handling the stress and emotions, but the children do not have the emotional and mental mechanisms to cope with the stress; furthermore, the children’s most reliable source for stability, the parents, are the subjects of the action and often so emotionally involved in the case that the parents are unable to provide objective emotional and mental support for children.
Unfortunately, sometimes children can be the only witnesses to critical facts or actions of one, or both, of the parents. If this is the case, it might be impossible for a Court to make a fair and fully educated decision in the children's best interest without the Court having the testimony from the children. The Florida Legislature and Florida Courts want to insulate the children from litigation as much as reasonably possible yet provide the parties to admit all relevant evidence that can show what is in the best interest of the children.
If this situation arises, Guardian ad Litems can be requested by one of the parties, agreed to be appointed by both of the parties, or Ordered by the Court to be appointed; Florida Statute §61.401 was enacted for the appointment of Guardian ad Litem.
Guardian ad Litems are appointed to act as a “friend” to the children and investigate/evaluate what is in the best interest of the children. Their sole duty will be to inform the Court of their findings and make recommendations to the Court as to what they believe is in the best interest of the children. Guardian ad Litems are provided a wide range of power and authority to conduct this investigation; most often, certain rules of evidence will be waived to for the Guardian to fully complete their duties.
As with any witness, both parties will have the ability and the right to cross examine the Guardian ad Litem in order to ensure the findings and recommendations are in the best interest of the child. The Guardian ad Litem will act independent of either of the parties and their attorneys, if applicable. Both the parents will be Ordered and expected to fully cooperate with the Guardian’s investigation and a party’s failure to fully cooperate will often reflect negatively in the Guardian’s report the Court.
Guardian ad Litems can be a valuable tool in providing the Court the ability to make fully educated and fair decisions based on the voice of the children while insulating them from the stress and involvement of a divorce proceeding. Each Guardian brings a different background and different specialties, so choosing the right Guardian for each case can be as critical as getting a Guardian appointed.