As Is my custom, when I have filed a motion in a case, I put a redacted copy online for others to use (as a guide or a warning, I am unsure until the outcome is completed). Either way, circumstances required that this motion be filed. I am irritated with myself, though, because – in redacting it – I have discovered several grammatical mistakes that I did not catch when I edited it previously. I need a second set of eyes whose grammatical abilities I trust.
MOTION TO REMOVE GUARDIAN AD LITEM OR TO REPLACE GUARDIAN AD LITEM FOR CAUSE
COMES NOW Defendant XXXXX XXXXX, by and through undersigned counsel, and makes and files this, his Motion to Remove Guardian Ad Litem or to Replace Guardian Ad Litem For Cause, because the fundamental conflict between the Guardian Ad Litem’s duty to represent the children of the parties to this divorce, as well as XXX duty to assist the Court and the parties in reaching a decision regarding child custody, visitation and child-related issues, as these duties are defined by Uniform Superior Court Rule 24.9(3), and XXX stated unwillingness to accept any reasonable payment arrangement with Defendant, render XXX necessarily biased against Defendant and only acting on behalf of Plaintiff, contrary to XXX duties, and in support thereof states the following:
The parties to this action have discussed a new visitation and custody arrangement with each other, and have resolved the fundamental disagreement between the two by discussion. It is Defendant’s belief that the current educational setting of the older child – the XXXXX public school system – is the best educational setting for the child at present, and the parties have agreed to a custodial and visitation arrangement that reflects this. They are otherwise in agreement as to the remaining aspects of the divorce action between them.
The fundamental guidelines for a Guardian Ad Litem in Georgia, appointed by a judge in a domestic matter, are set out in Rule 24.9(3) of the Uniform Rules for Superior Courts. That rule unambiguously states that “[t]he GAL shall represent the best interests of the child.” It goes on to state in the same subsection that this designated officer of the court “shall assist the court and the parties in reaching a decision regarding child custody, visitation and child-related issues.” On XXXXX XX, 2015, Defendant respectfully moved this Court to appoint a suitable Guardian Ad Litem to address the evident need of the children of the parties to be protected from blatant manipulation in the ongoing divorce action. If the recent agreement of the parties is rejected by the Court, then this need has become substantially greater. It is the single fundamentally strongest issue between the parties themselves.
Defendant is afraid that the late beginning of the Guardian Ad Litem and position XXX has taken with regard to the parties’ financial abilities has already poisoned XXX against him, and that XXX has therefore already failed spectacularly in her fulfillment of the duties which XXX is appointed to complete. XXX was appointed on XXXXX XX, 2015, but was not present at the hearing on XXXXX XX, 2015, and apparently did not even know about it. XXX has sent the following e-mail communications to Defendant, indicating to him – whether this is truly the case or otherwise – that XXX will not act to protect the children or investigate the issues unless XXX is promptly paid for XXX work. XXX justification for this apparently biased behavior is the Court’s Order appointing XXX, and XXX has said that XXX refuses to work until XXX retainer set by Order is paid in full. This is contrary to the verbal statements made by the trial judge at the hearing on XXXXX XX and to the timeliness of the completion of this divorce. On XXXXX XX, 2015, XXX made the following statements by e-mail to counsel for Defendant, which summarize the argument made here accurately:
- the Guardian does not need to begin until both parties have paid the retainer.
- I’m not sure what might have given you the impression that Judge XXXXX was surprised that a guardian was not starting until the full retainer was paid
- I do not do payment plans of any kind in my practice.
On the day before that message, XXXXX XX, 2015, XXX had already confirmed in an e-mail addressed to both parties that XXX had received payment from Plaintiff but not from Defendant (which inability to make payment, Defendant has already explained to the Court but which inability to make such payment is apparently unacceptable to the Guardian Ad Litem). By stating that “[i]f one party does not send a check, I will not be able to begin”, prefacing XXX statement with the payment by Plaintiff already, XXX confirmed in Defendant’s mind that XXX actions are only benefiting Plaintiff and are necessarily prejudiced against Defendant, since the existing status quo necessarily favors Plaintiff and forces Defendant to suffer extreme financial punishment if he also wishes to exercise his custody and visitation rights.
XXX has stated that XXX won’t even begin until Defendant, who is already suffering financially by Plaintiff’s actions in changing the school of the older child (thereby forcing Defendant and the younger child to spend roughly three to four hours in the car each schoolday that the older child stays with him) to pay even more or the Guardian Ad Litem will not even begin to perform XXX duties. All of the testimony and all of the evidence entered in this case, with the exception of Plaintiff’s own self-serving testimony, has indicated to Defendant that Plaintiff has financial ability and that the Guardian Ad Litem does not care about emotion or support for the children but only about which party can spend more. The actions of the Guardian Ad Litem only continue this trend, apparently, and this perception – whether accurate or not – requires that Defendant immediately agree to terms or that the Guardian Ad Litem be replaced if these terms are rejected by the Court.
Though it centered on a custody dispute between the rights of biological parents and an aunt, the 1981 Georgia Supreme Court case of Carvalho v. Lewis, 247 Ga. 94, 274 S.E.2d 471, addressed the basic rule of child custody that mere financial superiority is not the basic rule for finding the best interests of a child. That case said that “[a] finding of unfitness must center on the parent alone, that is, can the parent provide for the child sufficiently so that the government is not forced to step in and separate the child from the parent.” Carvalho at p. 95.
Again, a case involving a dispute between a third party and a parent provides an excellent analysis of what factors must be considered in determining those best interests, in Clark v. Wade, 273 Ga. 587, 598-599, 544 S.E.2d 99 (Ga. 2001):
In considering the issues of harm and custody, trial courts should consider a variety of factors that go beyond the parent’s biological connection or present fitness to encompass the child’s own needs. These factors should include:
(1) who are the past and present caretakers of the child;
(2) with whom has the child formed psychological bonds and how strong are those bonds;
(3) have the competing parties evidenced interest in, and contact with, the child over time; and
(4) does the child have unique medical or psychological needs that one party is better able to meet.
Though the strategy followed in this action at every step by Plaintiff has shown that XXX is willing to freely disregard these rules, it seems to Defendant as though the Guardian Ad Litem has also decided to ignore the needs of the children in favor of acting in a mercenary manner in favor Plaintiff in this dispute.
WHEREFORE, Defendant requests the following relief from this Honorable Court:
- That the terms agreed-to by the parties for the resolution of this dispute be accepted by the Court, and that the Guardian Ad Litem not continue with this matter at all, having never begun to fulfill XXX duties initially;
- That the Guardian Ad Litem appointed to represent the children in this matter, who has apparently not even begun work on this case even though it has already progressed substantially, be replaced with a Guardian Ad Litem who is not prejudiced against Defendant because of his poverty or his beliefs regarding XXX own prejudices, in the alternative;
- That the Court, if it rejects the negotiated settlement of the parties, make provision in its Order to allow for an appointed Guardian Ad Litem to accept a reasonable and affordable payment plan, reflecting the fact that material position should not be the sole deciding factor in determining the best interests of the child;
- If the Court should reject the agreement of the parties, that it reconsider the evidence that has been submitted to-date in this case, and the testimony the Court has listened to, and re-evaluate its decision to not require Plaintiff to pay the costs of the Guardian Ad Litem that XXX actions have required the appointment of; and
- For such other and further relief as the Court in its discretion deems fit to grant.
Respectfully submitted, this XX day of XXXXX, 2015.