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Trial Court Interfered With Parent’s Right To Question Guardian Ad Litem About Report

Posted on Wednesday, September 30, 2020

In this parenting-time dispute, the trial court improperly 1) treated the guardian ad litem (GAL) as a lawyer-guardian ad litem (LGAL) and 2) denied the parties’ right to question the GAL at a hearing, the Michigan Court of Appeals has ruled.

The Lenawee County Circuit Court in Strech v Bush (Docket No. 351196) appointed Jennifer Frost, an attorney, as the guardian ad litem (GAL) in the parties’ parenting-time dispute. As the appointed GAL, Frost prepared a report regarding what was in the child’s best interests. The trial court, however, denied the parties the right to question Frost during a hearing, ruling that she was actually a lawyer-guardian ad litem (LGAL). After the hearing, the trial court issued an order permitting Frost to withdraw from the case and ordering the parties to each pay Frost $1,072.50 in fees. The defendant-father filed a motion for reconsideration of the fees, which was denied.

The defendant appealed, challenging the order to pay Frost’s fees.

While the Court of Appeals affirmed the fee order, it also vacated the order allowing Frost to withdraw from the case. The appeals court remanded the matter to the trial court to continue the evidentiary hearing, so the parties could question Frost about her report.

“Although Frost fulfilled her role, the court interfered with [the defendant’s] right to examine her and to thereby controvert her report by denying his request to call Frost to the stand,” the Court of Appeals said. “While Frost is an attorney by trade, she was not serving as an attorney or an LGAL in this case. Frost created a report to help the court assess [the child’s] best interests and allowing the parties to examine the author on the stand furthers that interest.”

Judges Anica Letica, Karen M. Fort Hood and Elizabeth L. Gleicher were on the appellate panel that issued the unpublished decision.

Interference With Right To Examine

On appeal, the defendant argued the trial court erred by treating Frost as an LGAL rather than a GAL.

The trial court “clearly appointed” Frost to serve as a GAL, and not an LGAL, the Court of Appeals observed. “If the court erred and actually intended Frost to serve as LGAL, the court needed to enter a corrected order. The court did not do so and therefore Frost remained a GAL.”

However, “does this error require relief?” the Court of Appeals asked, noting that Frost met the obligations of a GAL. “She assisted the court in assessing [the child’s] best interests as required by MCL 722.22(g). Frost authored a report and filed it with the court. … As the parent with sole physical custody of [the child], [the defendant] was free to bring [the child] to his meeting with Frost but did not. Ultimately, Frost spoke to both parties and [the defendant’s] therapist, reviewed a recent custody evaluation, and considered evidence presented by the parties, such as ‘videos’ presented by the parties. During their testimonies at the hearing, each party testified that they video-recorded parenting-time exchanges …. Frost thereby assessed the concerns raised in the court’s order. And as such, Frost was entitled to payment for the services actually completed as a GAL.”

Regarding Frost’s fees, the defendant claimed the trial court could not order the parties to compensate Frost for her services because she did not personally visit the child. In making this argument, the defendant relied on MCL 700.5305 of the Estates and Protected Individuals Code. “The code, however, is intended to protect ‘an individual alleged to be incapacitated,’ MCL 700.5305(1), not children,” the Court of Appeals wrote. “And in the trial court, [the defendant] contended that a GAL could not seek payment through a contempt motion. [The defendant] cites no relevant statute, court rule, or caselaw supporting that position, either.”

On the other hand, the Court of Appeals explained that while Frost fulfilled her role, the trial court had interfered with the defendant’s right to examine her. The appeals court emphasized that, although Frost is an attorney, she 1) was not serving as an attorney or an LGAL in the case and 2) had prepared a report to help the court assess the child’s best interests. “[A]llowing the parties to examine the author on the stand furthers that interest,” the appellate panel said.

Based on the foregoing, instead of vacating the trial court’s order and leaving the child “in limbo,” the Court of Appeals remanded the case to continue the evidentiary hearing.

“The parties may call Frost to the stand in her capacity as GAL,” the Court of Appeals concluded. “The parties will be permitted to question Frost as the GAL regarding her report. This opens the parties’ competing parenting-time motions for further consideration. Following the hearing, the court may either reaffirm its earlier order regarding parenting time, or it may modify that order. In either event, the parties will be required to share the costs of Frost’s continued services.”

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