.put custody modification to the test


            Posted on Mar 29,2009   

            Case puts custody modification to the test.

Q. During my 2007 divorce, the guardian ad litem (GAL) reported that my wife had significant psychological problems, but suggested that if she got custody of our kids she'd behave better, so about a year later I filed a modification seeking custody.

The GAL was reappointed, reinvestigated, but didn't do new testing. The GAL reported my ex-wife's conduct had gotten worse and was declining, and that the kids' custody should now be shifted to me.

My wife's lawyer is arguing the GAL's new report should be tossed out because it relied upon old testing. What do you think will happen?

T.A., Russell

A. The GAL is essentially the court's expert who is appointed pursuant to a specific statute. The GAL's report will be admitted into evidence if the GAL is available for cross-examination by both sides.

The GAL will probably testify that no new testing was necessary because the mother is now exhibiting the same symptoms as before, but she is now out of control and harming the kids.

So that motion will be denied. That lawyer has a right to carefully cross-examine the GAL. After that, the judge decides what, if any weight, to give to the GAL's testimony.