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Georgia Case Law Update – In re Estate of Thompson

In some family law cases, a guardian ad litem (“GAL”) may be appointed to represent a minor and report back to the court as to the best interests of that minor in a custody battle. When a GAL is appointed, he/she has a very important role in representing the needs of the child at issue and, as such, is subject to very specific rules. In a recent case, the Court of Appeals of Georgia clarified the role a GAL must play in a guardianship case. In re Estate of Thompson, A15A0558, Court of Appeals of Georgia (2015). That case dealt with the battle between a father and grandmother over the guardianship of a developmentally disabled adult, Robyn.

In that case, the court appointed an attorney, Joey Marchant, to represent Robyn, but did not clarify what role the court intended Marchant to play – GAL or attorney. As a result, Marchant played both roles, making his recommendation as to which party should be Robyn’s guardian and cross-examining witnesses. After Marchant recommended the father to be Robyn’s guardian, the grandmother asked to question him, but was denied by the court. The court ultimately awarded guardianship to the father, and the grandmother appealed.

The Court of Appeals of Georgia agreed with the grandmother, holding that Georgia law is clear that a person who is appointed as counsel cannot also serve as GAL for the same individual and vice versa. O.C.G.A. § 29-9-3. The court also held that the right to cross examination of the GAL is important and, by treating Marchant as Robyn’s attorney and GAL, the lower court essentially took away that right. Accordingly, the Court remanded the case for a rehearing.

While this case dealt with a GAL of a developmentally disabled adult, rather than a minor child, the holding still applies to child custody cases where a GAL is involved. If a GAL is appointed, that GAL cannot participate in any hearings as an attorney. He/She cannot examine any witnesses on the stand. Any witness questioning must be done prior to the hearing so that the GAL can fully report his/her findings to the court at that time. In addition, attorneys representing both parties must have the opportunity to cross-examine the GAL about his/her findings. This is a substantial right that cannot be taken away.



Case Law Update
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