Ep. 43 The Role of a Guardian Ad Litem

The guardian ad litem (GAL) in Tennessee plays a crucial role in family court, acting as a voice for the child. As a legal representative of the child, they meet the child where they are in a case and advocate for the child's best interests and ensure their protection until the completion of the matter.

On this episode, Nick Morgan welcomes Judge Robert Philyaw of Hamilton County Juvenile Court and Attorney Chris Stiles of Chattanooga to discuss the topic of GAL's, give more insight in the role of a GAL both in practice and from behind the bench and talk about the importance in the relationship between the Guardian Ad Litem and the judge in the matter. 

This episode is for all audiences. 

Transcript

00;00;02;18 - 00;00;26;06
Host
When a child's best interest is at stake in Tennessee, what say does the child have in the matter? In past episodes of Tennessee Court Talk and Appointed Counsel, we've covered different types of law practices that cover many different types of courts offered in Tennessee. But today, we're digging deeper into family courts. When a mom and dad are at odds or the custody of the child is at stake.

00;00;26;08 - 00;00;58;22
Host
What rights does the child have, and how can that child be heard? These types of situations are where a judge, like Juvenile Court Judge Robert Philyaw in Chattanooga, appoints an attorney who specializes in difficult child custody cases like Chris Stiles to represent a child as their guardian ad litem. On today's episode, we will do just that explore the ins and outs of the role of the Guardian Ad Litem in the Tennessee Court System and some of the factors leading to an appointment of a Guardian Ad Litem.

00;00;58;24 - 00;01;04;19
Host
I'm your host, Nick Morgan. From the Administrative Office of the Courts. Gentlemen, welcome to Tennessee Court Talk.

00;01;04;22 - 00;01;07;25
Judge Philyaw
Thank you. Good morning. It's good to be here.

00;01;07;25 - 00;01;11;13
Host
And either of you can answer this. What is the purpose of having a Guardian Ad Litem?

00;01;11;16 - 00;01;41;29
Judge Philyaw
Well, I'll start. And then, Mr. Stiles can can fill in. I'm really glad you're doing this, by the way. Nick, this is a good topic. That that touches a lot of cases, touches a lot of families, and and there are some questions as we were talking beforehand. The name implies something, complicated when really a Guardian Ad Litem, has a has a major role, but but a fairly, simple role in, in that they're representing the best interest of the child.

00;01;42;01 - 00;02;04;18
Judge Philyaw
And so, that that indeed is the answer to your question. That's the purpose of a Guardian Ad Litem is to be a child's voice, whether it's a one day old or a 17 year old. Not necessarily the child's voice in, a teenager saying, this is what I want. Go argue it. But the Guardian Ad Litem, there is another procedure for that.

00;02;04;18 - 00;02;22;02
Judge Philyaw
But the Guardian Ad Litem role is is to represent the child's best interest. And that may or may not align with the child's wishes, but is a very important part of the legal process. And in a whole, variety of types of cases that I know we'll talk about in a few minutes.

00;02;22;04 - 00;02;41;21
Judge Stiles
So, yeah, a GAL as we, those attorneys get appointed on these typically call it because Guardian Ad Litem takes too long. It's different in juvenile court than it is in other courts. I mean, in this specifically, we are here just for the child's best interest. As judge was, was mentioning, there are times we get into these cases.

00;02;41;22 - 00;03;02;01
Judge Stiles
And, when a kid wants specifically a teenager might not be what the attorney feels is in their best interest. And there could be another avenue that we have to go down for those. But it's different. What a gal Guardian Ad Litem is in Juvenile Court versus Chancery or Probate, because those those are sometimes more investigative than just being an attorney.

00;03;02;03 - 00;03;14;29
Host
Judge Philyaw, I think as a Juvenile Court Judge, people don't always realize how much is going on into the care and protection of a child from the bench. At what point in a proceeding do you, as the judge, say, wait a minute, this child needs a lawyer, a GAL.

00;03;15;01 - 00;03;39;27
Judge Philyaw
I think it's important to note that under our our law, in every dependency and neglect case, the statute actually requires us to appoint a Guardian Ad Litem to represent the child's best interest in other cases, like custody cases. And that would also apply to divorce cases. It's more subjective. One side or the other may ask that a Guardian Ad Litem be appointed.

00;03;40;00 - 00;04;12;05
Judge Philyaw
Or the judge may own on his or her own decide that a Guardian Ad Litem needs to, be appointed to serve as, the child to, to represent the child's best interest and, you know, so depending on the, the case and the, the posture that may be the Guardian Ad Litem may actually be paid for by the parties, or in the indigent cases, like most of the dependent or a lot of the dependency neglect cases are the, the state would pay the Guardian Ad Litem.

00;04;12;07 - 00;04;38;26
Judge Philyaw
But the Guardian Ad Litem is appointed at the front end of that case and is expected to be and does I mean, they're they're attorneys, they're vetted. They're trained. They're involved in that child's case from start to end. You know, they certainly communicate with all the parties, the parents and, the state, attorneys and DCS attend, child and family team meetings, attend all the hearings, visit with the child.

00;04;38;26 - 00;04;55;17
Judge Philyaw
And Mr. Stiles can talk more about the mechanics as he, carries them out. Because he's very good at being a Guardian Ad Litem, very good attorney, very good at what he does. But, you know, to answer your question, those, you know, depending on the type of cases, the Guardian Ad Litem may be appointed at the very beginning.

00;04;55;19 - 00;05;08;19
Judge Philyaw
And stay on the case all the way through. Or maybe at some point, if it's a custody case somewhere during the proceedings or, you know, during the case, there's a realization that the child needs representation through a Guardian Ad Litem.

00;05;08;21 - 00;05;14;02
Host
I just assume it was always paid for by the state. There's cases where the parties would pay for the Guardian Ad Litem.

00;05;14;02 - 00;05;34;26
Judge Philyaw
Absolutely, yeah. If, if, if they're capable, you know, and, you know, usually. So, you know, as a rule of thumb, for example, if it's a custody case and they've hired attorneys to represent them, they can split the cost or the court could allocate. The court can determine who's going to pay for the Guardian Ad Litem. Most of the time it would be, you know, equally between the parties.

00;05;34;26 - 00;05;47;03
Judge Philyaw
But, in those cases, particularly, more times than not, the state doesn't pay for them, but the parties do. In the dependency neglect cases, it's just the opposite. The state ends up paying for most of those.

00;05;47;06 - 00;05;53;15
Host
Chris, once a judge decides that a child needs a GAL, what does that process look like for you? Is it does it start with a phone call?

00;05;53;15 - 00;06;14;26
Judge Stiles
So I'll give you the best attorney answer I can give on any of these types of questions. It depends. Typically, you want to get the pleadings and kind of see how we got here. You know what's in front of the court? And then go from there. You want to know how old your client is, you know, because, a one day old can't say a whole lot.

00;06;14;27 - 00;06;35;20
Judge Stiles
A 14 year old can say too much. Dad's, but but it that really depends. And then you've got to find out as judge was kind of alluding to, if DCS is involved in the case, it's a different process sometimes than if it's private party. And that's, that's where we get you know, sometimes you can have a dad that's mad at mom, and he filed something.

00;06;35;26 - 00;06;57;11
Judge Stiles
That's a gross overgeneralization and simplification of things. But, you have one parent that's filing against another parent, and you got to figure out, okay, somebody tell me where this kid is. Some attorneys get kind of antsy if we start trying to speak to their client. You know, mom or dad before we've talked to the attorney to kind of get the feel of what their side is.

00;06;57;13 - 00;07;14;14
Judge Stiles
But at some point in time, yes, there needs to be a meeting with the kiddo. Or children kind of figure out what's going on. Even if it is a DCS case. You know, one of the things that we realize some of these kiddos can be pulled in, judge can speak to this. Some of them can be pulled out of some pretty bad situations.

00;07;14;16 - 00;07;29;10
Judge Stiles
But the older the kid is, the more that's normal for them. So I mean, it's still, you know, you can have a child that's been pulled out of a very bad situation. All of us would be like, no human being should have to live in that. The kids coming and going, whatever you do, tell the judge, I want to go home.

00;07;29;10 - 00;07;51;24
Judge Stiles
It really depends on the you know, who filed a petition. If DCS filed and we pretty much know the kids normally that case, that means the child's in foster care. So we've got to figure out where the kids placed. How can I speak with the kid? When's the next, child family team meeting? When's the permanency meeting where all these different things occurring so that we can kind of get up to speed as fast as possible?

00;07;51;26 - 00;08;08;11
Judge Stiles
If it's private party filing those things, then we got to figure out. Did the court grant, a temporary order giving custody someone, or is the kid still with the parents? Then we're going to have a hearing and trying to figure out, you know, where we're going on here. So it really does depend on where the kid is, what's filed.

00;08;08;11 - 00;08;09;12
Judge Stiles
And while we're.

00;08;09;12 - 00;08;15;25
Host
Here, if it's multiple siblings, do you represent the siblings or just one of the children?

00;08;15;28 - 00;08;41;17
Judge Stiles
You can have one child subjected to dependency, neglect or abuse, and the other child may not be. And that happens from time to time. When you have a situation where it really when kids start getting older, say over the age, you know, when they start getting into double digits, especially in teenage years, you can have one that's adamant this is what they want to do, and another one that's adamant that it's not.

00;08;41;19 - 00;09;16;14
Judge Stiles
I've always found out if I can walk into court and tell the court that my children, you know, my client's wishes don't align. I ask the court, is this one that I have no problem walking in and telling them, telling the court what they want, advocating sometimes for what they want puts us in a different situation. So if you've got one child that you know, mom and dad is great and they want to be at home and another child, mom and dad are saying, mom and dad is horrible and I want to be far away sometimes it's in the best interest of everyone involved to get two different people to represent that.

00;09;16;17 - 00;09;39;12
Judge Stiles
But if it's a just a general situation where everybody's interests align, then no, you don't necessarily have to have a different person. So, you know, it's all the same situation, especially when you're dealing with younger children. A lot of times will represent the same, you know, three, 4 or 5 kids, whatever it may be to, because it's, it's, the interest kind of a and how we got here.

00;09;39;12 - 00;09;41;27
Judge Philyaw
Most of the time, it's it's the whole sibling group. Right?

00;09;42;01 - 00;09;47;21
Judge Stiles
It is. It is the majority of the time. I mean, it's not very often that we have to have to separate that out.

00;09;47;24 - 00;09;58;10
Host
What kind of conversation is a Guardian Ad Litem allowed to have with the child? And can the parent be in the room? Does the parent have to be in the room since they're a minor? What are the rules around that? I'm sure there.

00;09;58;10 - 00;10;18;00
Judge Philyaw
Are. Well, let me take that just real quickly. When when I when we appoint a Guardian Ad Litem, there is an order not just appointing, but there's a pretty, detailed order outlining what the Guardian Ad Litem can and can't do. But but that order gives the guardian ad litem access to medical records, to school records, and to the child.

00;10;18;06 - 00;10;35;10
Judge Philyaw
So the parent does not have to be in. In fact, the parent would not be present. In some of those discussions, the parent may be present in some because the Guardian Ad Litem may want to observe how the parent and child, you know, interact with each other, being a Guardian Ad Litem is takes, special skill.

00;10;35;10 - 00;10;50;27
Judge Philyaw
It's not, you know, it's it's about being a lawyer. It's about the legal technicalities. It's it's about being an advocate for a child's best interests. But also there's huge social aspects involved. And what we ask guardian ad litem to do.

00;10;51;00 - 00;10;55;29
Host
So, Chris, a follow up to that, how is a being a gal different than representing an adult?

00;10;56;02 - 00;11;25;00
Judge Stiles
Oh, well, I think being a parent attorney on cases makes me a better guardian because I'm understanding all avenues or, you know, the different perspectives on cases. But it is it is a lot different. I mean, you've got, you know, at the end of the day, you realize you're still dealing with representing a child, you know, and trying to do what you can to protect, protecting the innocence of that child as much as you possibly can.

00;11;25;02 - 00;11;47;26
Judge Stiles
And, and sometimes, sadly, that's gone way before we, we get involved in these cases, but still doing what we can to to treat each case and the kids in their best interest in that given case. It's different because, you know, representing a parent, you're trying to protect constitutional rights and you're you're arguing over things that you know, they're right to parent.

00;11;47;26 - 00;12;01;23
Judge Stiles
And this may not be the, you know, this this what they're doing might not be the safest, but they have a right to do certain things. And when you're representing a child, you're doing what you can to try to protect that kiddo as much as you possibly can, or those children as much as you possibly can.

00;12;01;29 - 00;12;06;15
Host
Chris, from your position as a Guardian Ad Litem, what recommendations are you allowed to make to the court.

00;12;06;18 - 00;12;29;06
Judge Stiles
Knowing the magistrates or the judge that you're in front of? For those of us that do this in multiple counties and do it in different spots, I mean, there's different expectation, in, in the types of cases that you're on, can determine that too. I mean, it's, you know, if you're doing a termination of parental rights slash adoption case versus a standard DCS case, I view that role.

00;12;29;06 - 00;12;51;06
Judge Stiles
And you could probably interview those of us that do a lot of the Gal work, and every one of us will kind of have a little bit of a different take on this. But I view that role, especially if DCS is involved. The Department of Children Services are involved in the case, to kind of holding everybody's feet to the fire to make sure we're doing right by a kid being there, just you're not there just to rubber stamp what DCS is asking for.

00;12;51;06 - 00;13;15;26
Judge Stiles
You're not there just to, you know, agree with one of the parents. You're there for what? In in my level of expertise is for for that child's best interests. Sometimes that's what DCS is asking for. And you can sign off on it. Sometimes it's not. And, you know, the parents are pushing back on certain things, and and we have to go that way, too.

00;13;15;28 - 00;13;35;08
Judge Stiles
But as far as the recommendations we can make to the court, again, it depends on the the judge or the magistrate you're in front of. Some will just stop and and ask at the end of, of proof, what do you think? And you're allowed to say it. Others not quite so pointed with, with how they're asking for it.

00;13;35;08 - 00;13;56;12
Judge Stiles
And we just kind of give a closing statement like we would if we were representing anybody else in the case. But I think from those that, the ones that I'm in front of on a regular basis, the weight of a gal's opinion weighs heavily in a case. If we've met with the child and we've we've done our work and our due diligence, what we should do on the front end of those cases, I think it weighs a lot.

00;13;56;13 - 00;14;03;02
Host
So Judge Philyaw, as Chris was talking about the recommendations, how do those recommendations from a Guardian Ad Litem factor into your decisions on the bench?

00;14;03;02 - 00;14;29;18
Judge Philyaw
You know, they may make recommendations, as such, but most of the time they're just going to, be more arguing. Or presenting the case as, as they think it should be presented. They, they can examine witnesses, they can subpoena witnesses, they cross-examine witnesses, they make arguments. And so they're they're literally not just there to, to make some recommendation at the end of a case.

00;14;29;18 - 00;15;02;08
Judge Philyaw
They're an active participant in the whole litigation. And so they have multiple opportunities to make a point or to represent the child's best interest and then, make those arguments in closing arguments, you know, including their recommendation or their what they're asking the court to do with that case. And, and as, Mr. Stiles said, they're not there to certainly not there to rubberstamp what DCS is arguing, although many times they're they're aligned, they're there to represent the child's best interests.

00;15;02;08 - 00;15;11;09
Judge Philyaw
And and that may be judge, send this child back home and let this family be reunited. You know, that may be the Guardian Ad Litem’s argument in and of course, had that argument.

00;15;11;09 - 00;15;29;26
Host
We've addressed this, but I want to be more specific. Where does the job of the Guardian Ad Litem end? I know it would end with whenever the case is finalized, but for example, if a case gets appealed to the Appellate Court, can the Guardian Ad Litem change from trial to appellate? And this may be a question for you.

00;15;29;26 - 00;15;33;02
Host
I'm not sure. I know that can take years to get to appellate court.

00;15;33;02 - 00;15;53;27
Judge Stiles
So, you know, obviously when a child ages out and we do have some cases that that is how they, as far as the Guardian Ad Litem’s representation ends because once they're emancipated, you know, reach the age of majority when they turn 18. They're not entitled. But yeah. So, again, different counties and jurisdictions do this a little bit different.

00;15;54;00 - 00;16;23;22
Judge Stiles
I think the statute is pretty clear that once we're appointed on a case, regardless of our capacity Guardian Ad Litem, parents, attorney or whatever, it's thought that through that petition, we're on the case until it reaches its finality. So, I mean, if, if, if it's dismissed and that, that resolves it, if, you know, these DCS cases, if the parents work their plan and get get custody returned, then that pretty much resolves it.

00;16;23;25 - 00;16;45;00
Judge Stiles
Where it gets confusing is if a termination is filed on these cases, that's actually a new petition. Now, I know most of the time, I think most of the courts that I'm familiar with, if you're a gal and you're familiar with the case, they want to ask or you would typically get a call asking, would you be willing to take this?

00;16;45;02 - 00;17;08;26
Judge Stiles
And then you're on it for the termination part of it, because sometimes judge can speak to this as well. Sometimes if the case originates in a magistrate in juvenile court, the termination is filed and judge hears it sometime so that that same, DCS can file that case in circuit court as well. And so the circuit court judges a lot of times, don't know, a lot of us that do a lot of just juvenile work.

00;17;08;26 - 00;17;27;28
Judge Stiles
And again, every county kind of handles this a little bit different. I know some counties where the the general sessions, the judge with your juvenile jurisdiction doesn't hear TPR because they've got so many other things going on. But in those cases where that happens, if there's a TPR filed and we get appointed on it, we're on the TPR until it's concluded.

00;17;27;28 - 00;17;44;14
Judge Stiles
It's not concluded until the appeals process runs. If there is an appeal filed for that, we still should be on it. Now. I guess we could file a motion or something to ask to be relieved, but I don't think that's what's really contemplated. We're the ones that know the case and we should be able to do it.

00;17;44;16 - 00;17;52;07
Judge Stiles
But yeah, we stay on it until it's over. So if it goes to the Court of Appeals and it goes up there and the orders say we're on it until it's done,

00;17;52;14 - 00;18;12;24
Judge Philyaw
My appointment orders say to the Court of Appeals as one of the stages, you know, I'll actually appoint for several different stages of the case. The attorney can get paid at several different stages. But you're talking about the Appellate Courts. The Guardian Ad Litem role is very important. And they're two. There's an often cited case from right here in Hamilton County.

00;18;12;24 - 00;18;42;04
Judge Philyaw
It was it was my case. It was a termination. It was a termination case. It was my case. At one point and it went to another court. The the Tennessee Supreme Court ended up hearing the case, and the Guardian Ad Litem had a vital role in in that argument and in crafting, that decision. So, it was just a good example of, of, of a Guardian Ad Litem literally making it all the way to the Supreme Court on a DNN matter.

00;18;42;06 - 00;18;49;16
Host
Judge Philyaw, Chris, thank you both so much for taking time to speak with us on a delicate but important subject. It's been a pleasure to sit down with you today.

00;18;49;17 - 00;18;49;26
Judge Philyaw
Thank you.