Written by attorney Dana Elaine Quigley

Florida: Guardian Ad Litems and the "May" Versus the "Shall" Appointments



To protect the child's interests, the court ma y appoint a GAL in any proceeding for dissolution of marriage or modification of parental responsibility.

Appointment of a guardian ad litem is generally discretionary, Perlow v. Berg-Perlow, 816 So.2d 210 (Fla. 4th DCA 2002), except when there are well-founded allegations of abuse or neglect, the court must appoint a GAL.

The GAL must be either an attorney, a layperson certified by the Florida Guardian Ad Litem Program, or a person certified by a not for profit legal aid organization. Florida Statute § 61.402. The court may appoint separate counsel for the child is necessary. Id.

_Text of Florida Statute § 61.401, Appointment of Guardian Ad Litems _

When the Court MAY Appoint a Guardian Ad Litem: In an action for dissolution of marriage or for the creation, approval, or modification of a parenting plan, if the court finds it is in the best interest of the child, the court MAY appoint a guardian ad litem to act as next friend of the child, investigator or evaluator, not as attorney or advocate.

Attorney Ad Litem or Advocate for the Child: The court in its discretion may also appoint legal counsel for a child to act as an attorney ad litem or advocate; however, the guardian and the legal counsel shall not be the same person.

When the Court SHALL Appoint a Guardian Ad Litem: In such actions which involve an allegation of child abuse, abandonment, or neglect as defined in s. 39.01, which allegation is verified and determined by the court to be well-founded, the court SHAL L appoint a guardian ad litem for the child. The guardian ad litem shall be a party to any judicial proceeding from the date of the appointment until the date of discharge.

Relevant and Helpful Case Law Regarding Guardian Ad Litems:

Leinenbach v. Leinenbach, 634 So.2d 252 (Fla. 2d DCA 1994)—In considering a Guardian Ad Litem's report, the court must provide copies to the parties and allow evidence to be introduced rebutting the guardian's recommendations.

Miller v. Miller, 671 So.2d 849 (Fla. 5th DCA 1996)—it is reversible error for the trial court to refuse to allow the parties to examine the Guardian Ad Litem regarding the contents of her report. See also, Scaringe v. Herrick, 711 So.2d 204 (Fla. 2d DCA 1998), regarding hearsay in a GAL's report.

In Arrabal v. Hage, 19 So.3d 1137 (Fla. 3d DCA 2009)—no error was found in the GAL testifying via telephone and without a written report when the mother and her attorney were able to cross-examine the Guardian Ad Litem.


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