Posted by Nydia Streets of Streets Law in Florida Child Custody

A guardian ad litem can be appointed in a Florida child custody case to help a judge determine the best interest of a child when parents cannot agree. The guardian’s fees are usually paid by the parent with the court determining what percentage of the fee each parent should pay. The payment of a guardian’s fee was an issue in the case Helinski v. Helinski, 3D19-2270 (Fla. 3d DCA March 31, 2021).

In a case in which child custody was at issue, a guardian ad litem was appointed. Before the court could make a ruling on the case, one of the parents filed a voluntary dismissal of the case. Ordinarily, when a voluntary dismissal is filed, the court has no further jurisdiction to proceed or to make rulings in the case. The trial court entered an order in favor of the guardian ad litem’s request for payment of her outstanding fees. The father appealed, presumably on the basis that the trial court did not have authority to enter the order because the matter had already been dismissed.

The appellate court disagreed with the father holding “We conclude that notwithstanding a voluntary dismissal, the trial court retained jurisdiction to award the guardian her fees and allocate the same between the parents. See e.g., Tobkin v. State, 777 So. 2d 1160, 1163 (Fla. 4th DCA 2001) (noting that ‘a voluntary dismissal does not divest the court of jurisdiction to conclude ancillary matters involved in the case such as outstanding and unresolved motions for attorney's fees and costs, and similar issues’); Giuffre v. Edwards, 226 So. 3d 1034, 1037-38 (Fla. 4th DCA 2017) (finding trial court had jurisdiction to consider non-party's motions for sanctions based upon revelation of confidential settlement negotiations by attorney that were submitted before parties filed stipulation of dismissal).”

The appellate court did, however, remand the case for reconsideration by the trial court where the father apparently was not given full discovery to prepare for the hearing on the fees. On remand, the trial court was instructed that it could not award fees for collection efforts sought by the guardian after the dismissal. Per a footnote, this was because “There is no statute authorizing an award of attorney's fees to collect fees for the guardian, and the guardian and the parties did not enter into a contract authorizing payment of such. Although section 61.403, Florida Statutes (2018), sets forth activities that a guardian may undertake, acting through counsel, it does not provide that a guardian ad litem may seek payment for the guardian's ‘collection efforts.’ Similarly, the agreed order appointing the guardian merely provides that ‘[t]he guardian . . . shall have all of the powers, privileges, and responsibilities authorized in section 61.403 . . . to the extent necessary to advance the best interests of the minor child(ren)’ and that [she] ‘is entitled, through counsel, to be present at any depositions, hearings, or other proceedings concerning the minor child(ren).’”

Use of a guardian ad litem in your Florida child custody case may be beneficial. Schedule a consultation with a Miami child custody lawyer to understand how the law may apply to your case.