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Having Your Child's Voice Heard in Court

In contested family law cases, clients frequently ask how a child’s wishes with regard to parenting time or custody can be presented to the judge. Indiana law states that a child’s wishes may be considered beginning at age 14; however, for younger children, and even children over the 14-year threshold, it is not often in the children’s interests to testify in open court. Further, judges may have a policy of abstaining from interviewing children in the judge’s chambers, often referred to as an In Camera Interview.

Given the importance of a judge’s understanding the child’s reality during a divorce, paternity, or custody modification proceeding, a Guardian Ad Litem (or GAL) provides a resource for investigating the child’s world and present a synthesized, yet thorough picture of the child’s reality to the Court. Many times, contested custody cases involve difficult matters, such as addiction, abuse, or mental health issues, and a GAL can assist in delving deeper into these complex, but relevant issues.

A Guardian Ad Litem is an adult, typically an attorney or mental health professional, who is appointed by the court to investigate the child or children’s situation and file a report with the Court. GALs can be appointed by the Court without a motion by the parties, or they may be appointed by agreement of the parties, or upon a motion by a party. Once appointed, the GAL will speak with the parents, the children, and other third-party individuals with whom the children regularly interact. These third parties often include teachers, physicians, coaches or other extracurricular activity leaders, and mental health professionals if the children are in counseling.

The GAL may also wish to speak with individuals who are familiar with or have interacted with the parents, particularly if those individuals spend time with the parent and child together. Because the GAL is the child’s court-appointed advocate, the GAL’s focus is to understand the child’s relationship with both parents, the interrelationship of the parents and the children, and the child’s life outside a litigation context.

Many times, the fees for a GAL are shared between the parties, or can be allocated to one party alone. Some counties in Indiana may have referral programs that have sliding scale, reduced rate, or pro bono services. The parties may also agree to use a given individual to be appointed as the GAL in their case, who is hired as private-pay Guardian Ad Litem.

When selecting a GAL, it is important to focus on the experience of the individual, namely that the person serving, if an attorney, has a focus on family law and is familiar with the mental, emotional, and legal dynamics that are present in custody cases. By having an individual who is familiar with the parties, the children, and the totality of the circumstances of the family dynamics, a comprehensive description of the children’s interests can be relayed to the Court without directly involving the children in the parties’ litigation. If you are interested in learning more about the use of a GAL in contested custody matters, do not hesitate to contact our offices at 317-773-3030.