Posted by Nydia Streets of Streets Law in Florida Child Custody

What is a guardian ad litem in a Florida child custody case? According to the Florida Statutes: “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.” Fla. Stat. 61.401. In plain terms, a guardian ad litem is someone appointed by the court to investigate claims made by both sides and to recommend to the court a parenting plan. A guardian’s recommendation and due process were issues in the case Pescod v. Irvin, 2D21-188 (Fla. 2d DCA November 17, 2021).

The guardian ad litem in the parties’ child custody case issued an unsworn report recommending reunification therapy between the parties’ child and the mother, as well as a three month “time-out” during which the child would not have overnight time-sharing with the mother at her home. The court, without a hearing, granted the father’s emergency motion to adopt the guardian ad litem’s recommendations and the mother appealed.

The appellate court reversed, holding “Although the motion upon which the order was predicated was sworn to by Mr. Irvin, Mr. Irvin did not allege an emergency situation as required for entry of an ex parte order and his only support was the unsworn report of the guardian ad litem. See Bahl v. Bahl, 220 So. 3d 1214, 1216 (Fla. 2d DCA 2016). Accordingly, the trial court reversibly erred in granting the motion without first holding an evidentiary hearing.”

If you are faced with a child custody case in Florida, schedule a consultation with a Miami family law attorney to assist you in understanding the next best steps in your case.