Opinion
1170064
03-22-2019
EX PARTE J.G. (In re: J.G. v. B.G.)
Petition for Writ of Certiorari To the Court of Civil Appeals (Tuscaloosa Circuit Court, DR-14-900003.01; Court of Civil Appeals, 2160059), Philip N. Lisenby, J. M. Virginia Buck, Northport, for petitioner. Kayla W. Griffin of Turner Law Group, Tuscaloosa, for appellee.
Petition for Writ of Certiorari To the Court of Civil Appeals (Tuscaloosa Circuit Court, DR-14-900003.01; Court of Civil Appeals, 2160059), Philip N. Lisenby, J.
M. Virginia Buck, Northport, for petitioner.
Kayla W. Griffin of Turner Law Group, Tuscaloosa, for appellee.
PER CURIAM.
WRIT QUASHED. NO OPINION.
Parker, C.J., and Shaw, Bryan, Mendheim, Stewart, and Mitchell, JJ., concur.
Bolin, Wise, and Sellers, JJ., dissent.
BOLIN, Justice (dissenting).
J.G. ("the mother") petitioned this Court for a writ of certiorari to review the Court of Civil Appeals' decision affirming the judgment of the Tuscaloosa Circuit Court ("the trial court"), which modified custody of two children born of her marriage to B.G. ("the father"). Because I believe the guardian ad litem exceeded his authority in filing a petition for custody in this matter, I dissent from quashing the writ.
Facts and Procedural History
The parties are both German citizens; they were married in 2007 in Germany. Two children were born of the marriage in 2007 and 2010, respectively. In 2010, the parties moved to the United States. In 2013, the mother learned that the father had hired prostitutes, and on January 5, 2014, the mother filed for divorce. On February 25, 2014, the parties entered into an agreement pending their divorce, which provided, in pertinent part, that the parties would have joint legal custody of the children, with the mother having sole physical custody. The agreement further provided:
"INTERNATIONAL VISITS: Both parents and children are German citizens and have family and friends in Germany. When planning international travel both parents agree to inform the other of their intent to visit and the dates the visits are to take place, within fifteen (15) days of the scheduled visit, unless the visit is due to an unforeseen emergency, such as a family death. The children's passports will be readily available to the parent making the visit. The visit shall not interfere with regular school attendance, unless the visit is of an emergen[cy] nature, such as a family death. Further, any non-custodial weekend visit missed by the Father shall be made up at his request on weekends that the children would normally be scheduled with the Mother."
On July 17, 2014, the trial court adopted the parties' agreement as a pendente lite order. The order provided that the parties were to work together to keep the children's German passports and other travel documentation valid and also gave the mother 30 days to vacate the marital residence.
On July 23, 2014, the police were called to the marital residence while the mother was moving out. The father was arrested for domestic-violence harassment, a violation of § 13A-6-132, Ala. Code 1975.
The disposition of the arrest is not clear from the record.
On July 30, 2014, the mother's attorney notified the father's attorneys that the mother had learned of the terminal illness of an immediate family member requiring surgery, and she wanted to take the children to Germany. The mother's attorney considered the relative's impending death an emergency pursuant to the parties' pendente lite agreement. The attorney stated that the children would be returning to Tuscaloosa before school started. Also on July 30, 2014, the father filed a "Verified Petition for Contempt and Objection to the Plaintiff's move to Germany under the Alabama Relocation Act and Ex Parte Motion for an order enjoining the parties from removing the minor children from the State of Alabama Pending a final hearing." On August 18, 2014, the trial court appointed a guardian ad litem for the children.
On August 19, 2014, the mother and the children went to Germany. On September 10, 2014, the trial court ordered the mother to return with the children to Tuscaloosa by October 3, 2014, and, in the event that they did not return, the trial court ordered the mother to appear and to show cause why she should not be punished for failing to comply with the order. The mother's counsel appeared at a hearing on the show-cause order held on October 6, 2014. On October 15, 2014, the trial court issued a writ of arrest for the mother based on her failure to appear. On December 18, 2014, the trial court recalled its writ of arrest after the mother and children returned from Germany. While the underlying divorce action was pending, the guardian ad litem filed a motion asking the court to order that the children undergo psychotherapy, requesting that Dr. Kathy Ronan be appointed as the therapist. On March 16, 2015, the mother notified the father that she intended to relocate to Germany if she was awarded permanent custody of the children. On March 27, 2015, the father filed a verified objection to the mother's proposed relocation to Germany. He asked the court to grant him custody of the children pending a final hearing on the parties' divorce proceeding.
On July 21, 2015, the guardian ad litem filed a motion to release funds for an expert witness. In his motion, the guardian ad litem noted that the trial court had a hearing scheduled for August 3, 2015. The guardian ad litem asked to be allowed to use funds paid into his trust account by the father to pay for the testimony of Dr. Ronan at the hearing regarding the issues of custody and visitation.
On August 3, 2015, the trial court held a hearing on the pending motions. The trial court stated that no final judgment had been entered in the divorce proceeding and that the court intended to adopt the parties' settlement agreement as a final judgment. The trial court stated that it was denying without prejudice anything filed in the original divorce proceeding. The trial court stated: "So, the parties can pursue anything they want to pursue that they have filed in the original case number that's denied without prejudice and you can petition the Court in another action or enforce or whatever you intend to do." The trial court then stated that the mother's request to relocate and the father's objection to her relocation would remain pending. The court then heard testimony from the mother regarding her relocation request. The trial court ended the hearing before the mother had presented all of her evidence regarding relocation. The trial court stated that the hearing would be reset to allow the mother to call Elizabeth Obradovich, a family friend, to testify.
On August 7, 2015, the trial court entered a final judgment of divorce. The final judgment provided that the parties would share legal custody of the children and that the mother would have sole physical custody. The father did not file any postjudgment motions, nor did he appeal from the final judgment of divorce.
On October 16, 2015, the guardian ad litem filed a petition to modify custody, alleging that the mother had engaged in "programming" and "parental alienation" of the children. The guardian ad litem asserted that the alienation had resulted in "traumatic abuse" such that it was a material change in circumstances and that the father should be awarded custody. The guardian ad litem's motion was based on a report filed by Dr. Ronan in July 2014 with the Tuscaloosa County Department of Human Resources ("DHR"). The guardian ad litem requested an emergency hearing on his motion. On November 17, 2015, the father filed a verified response to the guardian ad litem's petition and asked the court to set the petition for a hearing at the earliest possible date.
Reports are generally kept confidential. However, the trial court stipulated that Dr. Ronan initiated the report. The report is discussed infra.
On November 18, 2015, the father filed a motion seeking to enjoin the mother from taking the children to any mental-health professional other than Dr. Ronan. The father stated that the mother had indicated that she intended to seek a second expert opinion for the purposes of litigation.
On November 23, 2015, the mother filed a response to the father's motion regarding psychotherapy and also moved to terminate the order requiring the children to undergo psychotherapy with Dr. Ronan. The mother attached letters from the children's pediatrician, who stated that the children are under a great deal of stress because of the divorce and that their symptoms have not improved, despite months of counseling with Dr. Ronan. The pediatrician suggested that they see a child psychologist or child psychiatrist. The pediatrician noted that the children would benefit from talking with a psychologist or psychiatrist who speaks German, since that is the children's native language and the language spoken at home and the children often struggle with finding the right words in English when trying to explain things.
On December 8, 2015, the trial court held a hearing on "the request for emergency relief filed by the [guardian ad litem]." The trial court noted that it was not a final hearing and that the court was allowing only "one witness per party." The guardian ad litem called Dr. Ronan to testify. She testified that DHR had received a report that the father had sexually abused one of the children and had physically abused the other child. According to Dr. Ronan, DHR investigated the sexual-abuse report and found that it was not indicated. Dr. Ronan testified that she believed that, at a meeting in May 2014 with the guardian ad litem and the court-appointed therapeutic mediator, the mother was engaging in parental alienation and programming. However, Dr. Ronan opined that at that time the parental alienation and programming was "moderate."
Dr. Ronan testified that, based on literature regarding parental alienation, she believed the parental alienation and programming had increased. Dr. Ronan said that she made a report to DHR that the mother's parental alienation had become emotionally abusive for the children. Dr. Ronan stated that the guardian ad litem had relied on her opinion regarding traumatic parental alienation along with his own evidence and information in arriving at the belief that the mother was engaging in abusive parental alienation. The trial court stated that it did not have enough time for the mother's expert witness.
On December 11, 2015, the trial court entered an interim order noting that, because of the limited amount of time available, the court could not complete the hearing on the guardian ad litem's petition for "temporary modification of child custody." The court scheduled a hearing for January 28, 2016, to allow testimony from the mother's expert.
On January 28, 2016, the trial court heard testimony from the mother's expert, Dr. John Goff, a clinical psychologist, who opined that Dr. Ronan's records were insufficient on which to base a determination of parental alienation. He stated that an examination of the children alone would be insufficient to arrive at such a determination and that both parents have to be evaluated as well.
The trial court stated: "[Guardian ad litem], this is your petition, what is it you're requesting the Court do on an emergency basis?" The guardian ad litem asked the court whether the parents should be evaluated for the purposes of determining whether there had been parental alienation. The trial court asked if that would involve evaluation of the children and the guardian ad litem said that he thought it would. The trial court did not order any evaluations. The father's counsel asked to present a witness, which the trial court allowed. The father called a DHR caseworker, who testified that DHR's investigation had indicated that the children were being emotionally abused by the mother. On cross-examination, the caseworker admitted that Dr. Ronan made four pages of corrections and additions to the DHR report resulting from the investigation. On April 11, 2016, the guardian ad litem filed a second petition to modify custody, requesting that the father be awarded physical custody of the children and the mother be awarded supervised visitation. The guardian ad litem again requested an emergency hearing on the motion.
On April 20, 2016, the mother responded to the guardian ad litem's petition to modify custody and filed a petition asking that the father's visitation be supervised. That same day, the father filed a motion to strike the mother's counterpetition insofar as it requested that the father's visitation be supervised.
On June 22, 2016, the trial court held a hearing "for continuation of trial." The court noted that the testimony from August 3, 2015, December 8, 2015, and January 28, 2016, would all be considered "as part of the testimony in the case." The trial court stated that it was starting with testimony regarding the mother's relocation request. The trial court heard testimony from Elizabeth Obradovich, Silke Suhr, and Inga Herrmann, family friends who had observed the children and the parents interacting.
After the mother presented her witnesses, the trial court stated:
"I'm not sure I did this on the record, for purposes of the record, the process we talked about or came up with on May 2nd attorney conference was as follows: The [mother] would finish the relocation issue. [The guardian ad litem] would present his custody modification. The [father] would respond to the relocation custody modification issues and present his counterclaim. The [mother] would respond to the [guardian ad litem's] custody modification and [father's] petition. [The mother] to present her petition to modify custody. [The father] and [guardian ad litem] to respond. So, we're on the second phase. [Guardian ad litem] to present custody modification."
The guardian ad litem presented testimony from a teacher at the children's school. He recalled Dr. Ronan to testify. The guardian ad litem called the father to testify. The trial court was unable to complete the hearing due to time constraints.
On July 19, 2016, the court continued the hearing. The mother testified. The father presented the testimony of a supervisor at DHR. At the end of that hearing, the trial court asked the guardian ad litem, the mother, and the father to submit written summaries of their positions.
On September 13, 2016, the trial court entered a final judgment, stating:
"This matter is before the Court on various petitions filed by the Mother, the [guardian ad litem], and the Father; and
"The trial of these issues occurred over several days over course of approximately one year, with the final day of trial occurring on July 19, 2016 (the attorneys for the parties were requested to, and they did, submit post-trial arguments for the court's consideration)....
"....
"Based upon the evidence presented, the Court makes the following findings and enters the following orders.
"Findings
"(1) This case has a long and complex history beginning with the parties' original filing for a divorce in this Court on January 5, 2014.
"(2) Although there was certainly a great deal of animosity and indecision by and between the parties, this Court ultimately entered a final decree of divorce on August 7, 2015. The final decree adopted the terms of a mediated settlement as part of the order. No appeal
was taken from the entry of said final decree.
"(3) The final decree provided that the parties would share legal custody of the children and that the Mother would be designated sole physical custodian.
"(4) The primary issues presented to the Court are:
"(A) The Mother's request to relocate the physical residence of the children to Germany.
"(B) The Guardian Ad Litem's petition for modification of custody of the children.
"(C) The Father's petition for modification of custody and for contempt and other relief.
"(D) The Mother's petition for modification of custody.
"(5) By virtue of the fact that the Mother was designated the sole physical custodian of the children, any requests for modification of physical custody must meet the heavy burden as set forth by the Alabama Supreme Court in Ex parte McLendon, 455 So.2d 863 (Ala. 1984).
"(6) Pursuant to the Alabama Parent-Child Relationship Protection Act, after the Father objected to the Mother's proposed relocation of the children to Germany, the Mother must show that such a move would be to the best interests of the children.
"(7) From the evidence presented, the Court finds that the Mother's request to relocate the children to Germany is due to and is hereby denied.
"(8) From the evidence presented, the Court finds that the burden of proof as required by Ex parte McLendon has been met.
"(9) The highly experienced and knowledgeable Guardian Ad Litem for the minor children urges the Court to provide that the Mother's visitation be supervised. The Court finds that the evidence presented would tend to warrant that any visitation between the Mother and the children be supervised in order to minimize the continuation of the Mother's behavior which resulted in the Court's finding that the McLendon standard had been met. However, the Court finds that such an extreme curtailment of the children's contact with the Mother would not serve the children's best interests at this time. The continuation of the Mother's behaviors, which are significantly adverse to the children's best interests, could certainly form the basis of a future modifications."
The trial court awarded the father "sole legal and physical custody" of the children, with the mother having visitation. The mother filed a motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial. The guardian ad litem filed an objection to the mother's postjudgment motion. The father did not respond to the mother's motion. The mother's motion was denied by operation of law. The mother appealed to the Court of Civil Appeals, which affirmed the judgment of the trial court, without an opinion. J.G. v. B.G., 266 So. 3d 2 (Ala. Civ. App. 2017) (table).
Discussion
The mother argues that this case presents an issue of first impression as to whether a guardian ad litem has standing to file a petition to modify custody when the guardian ad litem was not a party to the private divorce action resulting in a custody determination. The father had not filed a petition to modify custody, although, during one of the post-divorce hearings, the father was asked if he wanted sole custody of the children and he responded that he did.
In Ex parte BAC Home Loans Servicing LLP, 159 So.3d 31 (Ala. 2013), this Court cautioned that the concept of standing is generally relevant only in public-law cases. In , 141 So.3d 984 (Ala. 2013), the Court held that subject-matter jurisdiction was not implicated when a lack of standing was asserted. In MERSCORP, the mortgagee and the operator of an electronic-mortgage-recording database, the defendants below, petitioned the Court for a writ of mandamus seeking dismissal of an action filed by the probate judge in her official capacity on behalf of a putative class of all state probate judges alleging that the defendants had obstructed Alabama law regarding the recording of mortgages. The defendants argued that because the recording statutes did not impose a duty to record the transfer or assignment of loans, the probate judges lacked standing to assert a claim based on an alleged failure to record. This Court held that the defendants' argument challenged the plaintiffs' interpretation of the recording statutes but not their standing.
In Hamm v. Norfolk Southern Ry., 52 So.3d 484, 499 (Ala. 2010) (Lyons, J., concurring specially), Justice Lyons explained in his special concurrence how standing has been confused with the concept of real party in interest. Hamm involved a railroad worker's action against the railroad under the Federal Employers' Liability Act ("FELA"). The railroad argued that the worker was estopped from pursuing his FELA claim because he failed to list the claim as an asset of his Chapter 7 bankruptcy estate. The trial court entered a summary judgment in favor of the railroad and subsequently denied motions to substitute the worker's bankruptcy trustee as the real party in interest. Justice Lyons noted that most of a debtor's possessions become property of the bankruptcy estate upon the filing of a bankruptcy petition and that the right to bring a post-discharge action based on a pre-bankruptcy claim exists only when the trustee abandons the claim. In the absence of an abandonment of the FELA cause of action by the bankruptcy trustee, the worker was not the real party in interest when he commenced the post-discharge action against the railroad. Justice Lyons explained:
" Rule 17(a), Ala. R. Civ. P., requires that an action be brought in the name of the real party in interest. It further provides:
" ‘No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.’
" In An–Tze Cheng v. K & S Diversified Investments, Inc. (In re An–Tze Cheng), 308 B.R. 448, 461 (B.A.P. 9th Cir. 2004), the court stated: ‘The consequence is that, once the bankruptcy case is filed, the debtor lacks standing because the trustee owns the cause of action.’ (Emphasis added.) If the problem is truly an issue of standing, then subsequent efforts to cure the defect are for naught. See Cadle Co. v. Shabani, 4 So.3d 460, 462–63 (Ala. 2008) :
" ‘Perhaps the trial court and the parties assumed that the jurisdictional defect created by Cadle's lack of standing to commence this ejectment action was cured by the pleading purporting to amend the complaint to add additional parties. If so, they were mistaken. Standing is " ‘ "[t]he requisite personal interest that must exist at the commencement of the litigation." ’ "
Pharmacia Corp. v. Suggs, 932 So.2d 95, 98 (Ala. 2005) (quoting In re Allison G., 276 Conn. 146, 156, 883 A.2d 1226, 1231 (2005), quoting in turn H. Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973) ).’
" Rule 17(a) allows an action to proceed after an objection is made based on the absence of the real party in interest if curative steps are taken. Obviously, an absence of a real party in interest does not implicate subject-matter jurisdiction or the sole remedy would be dismissal, as opposed to countenancing curative measures. If we allow instances of the want of a real party in interest to be swallowed up by an erroneously expansive definition of standing, we will effectively eliminate any field of operation for the aforementioned feature of Rule 17(a) allowing the defect to be cured.
"Standing is properly limited to circumstances stemming from lack of justiciability. A plaintiff must be so situated that he or she will bring the requisite adverseness to the proceeding. A plaintiff must also have a direct stake in the outcome so as to prevent litigation, initiated by an interested bystander with an agenda, having an adverse impact on those whose rights are directly implicated. See Diamond v. Charles, 476 U.S. 54, 61–62, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986).
"Much of the precedent in the area of standing comes from federal courts subject to the case-or-controversy requirement of Article III of the United States Constitution. Of course, we do not have a case-or-controversy requirement in the Alabama Constitution of 1901, but our concepts of justiciability are not substantially dissimilar. See Pharmacia Corp. v. Suggs, 932 So.2d 95 (Ala. 2005), where this Court, after noting the absence of a case-or-controversy requirement in our Constitution, observed:
" ‘We have construed Art. VI, § 139, Ala. Const. of 1901 (as amended by amend. no. 328, § 6.01, vesting the judicial power in the Unified Judicial System), to vest this Court "with a limited judicial power that entails the special competence to decide discrete cases and controversies involving particular parties and specific facts." Alabama Power Co. v. Citizens of Alabama, 740 So.2d 371, 381 (Ala. 1999). See also Copeland v. Jefferson County, 284 Ala. 558, 226 So.2d 385 (1969) (courts decide only concrete controversies between adverse parties).’
" 932 So.2d at 97 n. 4.
"If we limit standing to issues of justiciability as defined above, thereby significantly reducing the occasion for concerns over subject-matter jurisdiction, the problem in this case is properly viewed as an issue of real party in interest for which Rule 17(a), Ala. R. Civ. P., offers a remedy. In this proceeding we have no concerns over adverseness nor do we have a meddlesome bystander at the helm as of the commencement of the action. Viewed from this perspective, no problem of absence of subject-matter jurisdiction is presented."
Hamm, 52 So.3d at 499–500 (Lyons, J., concurring specially).
I disagree with the mother's argument that the guardian ad litem lacked standing, because the circuit court has jurisdiction over domestic-relations proceedings. However, although standing is not an issue, the guardian ad litem's lack of authority and adverseness to the proceedings is.
In the present case, the trial court appointed the guardian ad litem in the parties' contested divorce action. The trial court entered a final judgment in the divorce action on August 7, 2015, incorporating the parties' property settlement and awarding the parents joint custody of the children and the mother sole physical custody. The guardian ad litem filed a petition to modify custody on October 16, 2015. It is clear that the trial court intended to address the mother's request to relocate with the children to Germany after it entered a final judgment of divorce.
The mother's request to relocate was made pursuant to the Alabama Parent-Child Relationship Protection Act, § 30-3-160 et seq., Ala. Code 1975 ("the Act"). Section 30-3-166 of the Act requires that all child-custody determinations include language regarding notification of a proposed change of residence. Section 30-3-169.3(a) provides:
"Upon the entry of a temporary order or upon final judgment permitting the change of principal residence of a child, a court may consider a proposed change of principal residence of a child as a factor to support a change of custody of the child. In determining whether a proposed or actual change of principal residence of a minor child should cause a change in custody of that child, a court shall take into account all factors affecting the child, including, but not limited to, the following ...."
Section 30–3–169.3(a) then lists 17 factors for a trial court to consider when determining whether a proposed change of the principal residence of a child should cause a change in custody. The Court of Civil Appeals in Pepper v. Pepper, 65 So.3d 421, 425-27 (Ala. Civ. App. 2010), explained:
"Section 30-3-169.3(a) goes on to list 17 factors for a trial court to consider when determining whether a proposed change of principal residence of a child, i.e., a change made after entry of a temporary order, or an actual change of principal residence of the child, i.e., a change made after entry of a final judgment, should result in a change of custody. A plain reading of § 30–3–169.3 allows a trial court to consider a proposed change of principal residence of a child as a factor to support a change of custody only ‘[u]pon the entry of a temporary order or upon a final judgment permitting the change of principal residence of a child.’ See Ex parte T.B., 698 So.2d 127, 130 (Ala. 1997) (‘When the language of a statute is plain and unambiguous, as in this case, courts must enforce the statute as written by giving the words of the statute their ordinary plain meaning -- they must interpret that language to mean exactly what it says and thus give effect to the apparent intent of the Legislature.’).
"....
"The father argues that the mother failed to present testimony at the final hearing indicating that she was willing to remain in Huntsville if the trial court concluded that she could not change the principal residence of the children. However, the plain language of § 30–3–169.3 reveals an implicit presumption that no material change in circumstances exists if the relocating parent is not permitted, by temporary order or by final judgment, to change the principal residence of the children. As then Judge Murdock pointed out in his special concurrence in Toler v. Toler, 947 So.2d 416, 423 n. 3 (Ala. Civ. App. 2006) , ‘[i]n a case in which the custodial parent subsequently chooses to remain in the same locale with the child, the cause for the proposed change of custody would be eliminated and the case would become moot, at least to that extent.’ "
(Emphasis added.) In other words, custody modification is not at issue unless the trial court grants the motion to relocate. I would be remiss if I did not question here whether the trial court had subject-matter jurisdiction over the guardian ad litem's petition based on the fact that the only matter that remained pending was the mother's petition to relocate. In Ex parte Bragg, 237 So.3d 235 (Ala. Civ. App. 2017), the mother, in August 2013, filed a petition requesting that the trial court domesticate a Tennessee judgment divorcing the mother and the father. She also requested that the trial court modify provisions of that judgment relating to the father's visitation with the children. The mother's action was assigned case no. DR–13–900186. In response to the mother's petition, the trial court entered a judgment domesticating the divorce judgment and modifying that judgment so as to establish a new location where the parties were to exchange the children before and after the father's visitation periods.
In Bragg, the mother filed a petition in May 2014 requesting that the trial court increase the father's child-support obligation. That action was assigned case no. DR–13–900186.01 but eventually was dismissed. In July 2014, the father filed a petition requesting that the trial court hold the mother in contempt of court, award the father joint legal custody of the children, modify the father's visitation rights, and decrease the father's child-support obligation. The father's action was assigned case no. DR–13–900186.02 ("the father's modification action"). Shortly thereafter, the trial court entered an order in the father's modification action appointing a guardian ad litem to represent the interests of the children. The trial court entered a final judgment in May 2016. Both the father's and the mother's postjudgment motions were denied by operation of law.
In January 2017, the father filed a motion to modify custody. In February 2017, the guardian ad litem filed a motion requesting an emergency transfer of custody pending a hearing in the father's custody-modification action. The trial court temporarily awarded custody to the father. The Court of Civil Appeals stated that the trial court lacked jurisdiction to issue its order, explaining:
"We agree with the mother's assertion that the parties' postjudgment motions, directed at the trial court's May 2016 judgment in the father's modification action, were denied by operation of law under Rule 59.1, Ala. R. Civ. P., and that, at that time, all pending issues in the father's modification action were resolved. Although the parties' subsequent filings might suggest that they believed the May 2016 judgment to be nonfinal, that judgment clearly states that all requests for relief not granted therein were denied. Accordingly, the guardian ad litem's motion was, in essence, a new petition for modification of custody. See Ex parte DiGeronimo, 195 So.3d 963, 967 n.3 (Ala. Civ. App. 2015). The same is true for the father's request for a hearing regarding the alleged truancy of one of the children, to the extent that motion can be construed as a request for an award of custody.
"In Farmer v. Farmer, 842 So.2d 679, 680 (Ala. Civ. App. 2002), this court acknowledged that ‘a petition to modify [custody] is a separate action that requires a proper filing, the payment of a filing fee, and service.’ The court also stated that ‘[t]he failure to pay the filing or docketing fee is a jurisdictional defect.’ Id. at 681. Relying on Farmer, the court in Vann v. Cook, 989 So.2d 556 (Ala. Civ. App. 2008), held that a petitioner's failure to pay a filing fee in connection with the filing of a petition to modify custody deprived the trial court of jurisdiction. Similarly, in
Odom v. Odom, 89 So.3d 121 (Ala. Civ. App. 2011), the court held that a trial court lacked jurisdiction to modify the child-support provisions of a divorce judgment, because the petitioner had not paid the applicable filing fee and had not submitted a verified statement of substantial hardship seeking waiver of that fee. The soundness of the jurisdiction-related holdings in Farmer, Vann, and Odom has been questioned. See, e.g., Merriam v. Davidson, 184 So.3d 411, 414 (Ala. Civ. App. 2015) (Thompson, P.J., concurring in the result). As Presiding Judge Thompson acknowledged in Merriam, however, our supreme court has ‘effectively endorsed’ the substance of those holdings. Id.
"It is uncontested that a new case was not opened when the father filed his request for a hearing or when the guardian ad litem filed her petition for a modification of custody. It is also uncontested that no new filing fees for the commencement of a custody action or a child-support-modification action were paid. Thus, we must hold that the trial court lacked jurisdiction over any such action. Accordingly, the judgments challenged by the mother are void, and we issue the writ of mandamus directing the trial court to vacate those judgments."
Bragg, 237 So.3d at 237–38 (footnote omitted).
Here, the custody-modification petition filed by the guardian ad litem on October 16, 2015, acknowledges that a final divorce judgment had been entered on August 7, 2015, and that the mother had been awarded physical custody of the children. The guardian ad litem requested that the trial court modify its prior judgment regarding custody and requested an "emergency" hearing. I recognize that § 12-15-141, Ala. Code 1975, gives juvenile courts the jurisdiction over ex parte protection orders in emergencies in which it is alleged that a child's health or safety is endangered. However, the guardian ad litem's petition was filed in the mother and father's divorce proceeding, which was in the domestic-relations division of the court; nothing was filed in the juvenile division of the court. There were no allegations of neglect or dependency. Furthermore, the trial court treated the matter as a custody-modification proceeding and not as an "emergency" matter -- a hearing was not held on the guardian ad litem's petition until December and then it was only part of a hearing that was held in several stages over the course of a year.
A circuit court lacks jurisdiction to consider a petition for a finding of dependency in a divorce action. M.S.M. v. M.W.M., 72 So.3d 626 (Ala. Civ. App. 2011).
With only the mother's petition to relocate pending before the trial court, any petition to modify custody would have been a new action. By statute, the mother's petition to relocate does not implicate custody unless the petition is granted. Nothing indicates that a new docketing or filing fee was paid for the guardian ad litem's petition.
Even assuming that the trial court had jurisdiction, I feel it necessary to address the guardian ad litem's action in filing a petition to modify custody. It is important to note that a child is not a party to a custody-modification action. See Jones v. McCoy, 150 So.3d 1074, 1081 (Ala. Civ. App. 2013) (citing Cochran v. Cochran, 49 Ala. App. 178, 189, 269 So.2d 884, 895 (1970), overruled on other grounds, 289 Ala. 615, 269 So.2d 897 (1972) (noting that children of parties to a divorce action are not parties themselves and that the appointment of a guardian ad litem is not required) ). In D.E.S. v. J.S., 603 So.2d 1064 (Ala. Civ. App. 1992), the mother argued that the trial court erred in failing to appoint a guardian ad litem to represent the child in the custody proceeding. The Court of Civil Appeals stated:
"The mother next asserts that the trial court erred in failing to appoint a guardian ad litem to represent the child in the custody proceeding. She insists that the trial court's failure to do so was in contravention of § 26–14–11, Code 1975.
"An appointment of a guardian ad litem under the provisions of § 26–14–11 ‘is directed primarily at protecting the interests of the child in a civil proceeding instituted against the child or in those proceedings attendant to a criminal prosecution for child abuse where the interests of the child conflict with those of the original guardian and/or cannot be adequately represented or protected by the State.’ Burkett v. State, 439 So.2d 737 (Ala. Crim. App. 1983).
"This section is not applicable to the facts of this case. We know of no statutory or case authority that requires the appointment of a guardian ad litem for children in a custody dispute arising in a divorce decree modification hearing."
In Jones v. McCoy, supra, the mother filed a motion seeking the recusal of the guardian ad litem because, she said, the guardian ad litem failed to understand that his role in the case was to advocate for the child's best interests and not to advocate for the child's personal wish to live with the father. The Court of Civil Appeals explained:
"We agree with the mother that the role of the guardian ad litem is to zealously advocate for the best interests of the child and not necessarily to represent the position of the child in relation to the litigation. As recognized in Steven N. Peskind, Evidentiary Opportunities: Applicability of the Hearsay Rules in Child Custody Proceedings, 25 J. Am. Acad. Matrimonial Law. 375, 396 (2013) : ‘[J]udges often appoint guardians ad litem, who serve as court investigators and take on a quasi-expert role in rendering opinions concerning the best interest of the children.’
" ‘Unlike the child's attorney whose role is generally to represent the stated wishes of the child, the [guardian ad litem] is generally expected to advocate for the best interests of the child, whether or not the child is in agreement. Moreover, the [guardian ad litem] "owes his or her primary duty to the court and not to the child-client alone." ’
"M. Boumil, C. Freitas & D. Freitas, Legal and Ethical Issues Confronting Guardian Ad Litem Practice, 13 J.L. & Fam. Stud. 43, 45–46 (2011) (footnotes omitted).
"In this case, the guardian ad litem expressed his belief in a document filed with the trial court that it was his ‘sworn duty to zealously advocate for [the child's] position’ that physical custody should be transferred to the father. From that statement, and others contained in the record, it appears that the guardian ad litem understood that he was acting as an attorney for the child, rather than as a guardian ad litem. However, the fact that the guardian ad litem may have misunderstood his appointed role does not, in and of itself, demonstrate that the mother's rights were unduly prejudiced.
"The mother cites only M.B. v. R.P., 3 So.3d 237 (Ala. Civ. App. 2008), in support of her argument that her rights were unduly prejudiced. In M.B., this court held that a party had been prejudiced because the juvenile court considered a recommendation of a guardian ad
litem who did not attend the trial and, thus, did not consider the evidence presented at the trial when making the recommendation and, further, had not been subject to cross-examination. See also Ex parte R.D.N., 918 So.2d 100 (Ala. 2005) (holding that party's right to due process is violated when court considers ex parte recommendation of guardian ad litem). In this case, the mother does not assert that she was denied a full and fair opportunity to contest the recommendations of the guardian ad litem or his purported misunderstanding of his role in the case. Therefore, M.B. does not support her argument, and we find no basis for concluding that the mother was denied due process or that the guardian ad litem should have been recused."
150 So.3d at 1080–81.
The Court of Civil Appeals' discussion in Jones v. McCoy recognizes the hybrid role of the guardian ad litem in a domestic-relations proceeding, i.e., a guardian ad litem is generally expected to advocate for the best interests of the child, regardless of whether the child is in agreement, while the guardian ad litem owes his or her primary duty to the court and not to the child-client alone. A guardian ad litem, in its hybrid role, must also zealously represent the child and can, for example, examine witnesses in a divorce proceeding. The guardian ad litem is in essence a lay investigator for the trial court. Along with its role as "advocate," the guardian ad litem has the role of opining as to who should have custody of the child in a divorce proceeding.
In a domestic-relations proceeding, the guardian ad litem typically provides the court and parties with a report and a recommendation on custody that he or she believes is in the best interests of the child. See Marsh v. Smith, 67 So.3d 100, 106 (Ala. Civ. App. 2011) (holding that, although a trial court may consider a recommendation made by a guardian ad litem, the court is not bound by that recommendation). The guardian ad litem may be subject to examination by the parties. See Ex parte R.D.N., 918 So.2d 100, 102 (Ala. 2005) (holding that when the guardian ad litem made a custody recommendation to the trial court during a private conference, the ex parte communication violated a party's right to examine and cross-examine the guardian ad litem and that neither party had the opportunity to present evidence in open court in support of or contradicting the guardian ad litem's recommendation).
Although it has become commonplace for courts to appoint a guardian ad litem to represent the children in contested divorce proceedings, the Court of Civil Appeals in Leigh v. Aiken, 54 Ala. App. 620, 311 So.2d 444 (1975), appears to have addressed for the first time the efficacy of such a practice. In Leigh v. Aiken, the mother filed a petition to modify custody, which the trial court denied. The mother argued that the trial court erred in not appointing a guardian ad litem for the child. The mother cited several law-review articles in support of her position, and amici curiae briefs were filed advocating for the appointment of a guardian ad litem. The Court of Civil Appeals noted that there was no citation, either in the mother's brief or the amici curiae briefs, to any authority holding that failure to appoint a guardian ad litem to represent the interest of a minor in a child-custody case arising from a divorce proceeding was a violation of due process. The Court of Civil Appeals discussed the views of those who advocated for the appointment of a guardian ad litem in such a custody case, noting:
The amici curiae briefs were submitted on behalf of the child, but the Court of Civil Appeals did not accept them in such a posture and instead accepted them on behalf of the mother.
"We recognize that often the parents in such cases are seemingly more concerned with exercising their spite and dislike for one another than in promoting the welfare of their child. We recognize that agreements as to custody are sometimes founded upon coercion, blackmail, consideration of property or other personal reasons not necessarily related to the best interest of the child. It is the burden and responsibility of the court to look into and through such reasons, using its experience, insight or other appropriate methods. From our experience, we are convinced that the trial courts are usually diligent to do so.
"On the other hand, we consider the state has a compelling interest in not making a child a party in exercising its peculiar jurisdiction in custody cases. To require a child to be made a party and participate in the case through counsel will immediately present an adversary posture. The child becomes the adversary of one parent or the other, and under some circumstances both. There is a great difference between being an adversary of the state in a juvenile delinquency proceeding and being an adversary with parents in a custody proceeding. In the juvenile proceeding a parent and the child are usually on the same side and against the state. In the custody case the child must be aligned with or against a parent. The court in exercising its discretion in a custody case is not bound by the preponderance of the evidence. It may or may not decide custody in accordance with the desire of the child or in favor of the parent with whom it is aligned in the proceeding. What chance of a satisfactory relation is there when custody is ultimately given to a parent who has been the heated and perhaps maligned adversary?
"If counsel is appointed, whose view does he represent, his own or that of the child? Is the child to be a witness and subject to cross-examination? Is the child to have the right of appeal? How is the cost of counsel and his expense of investigation to be assessed?"
54 Ala. App. at 625, 311 So.2d at 448. The Court of Civil Appeals further stated:
"Of course, this state has always recognized the importance of the role of the court in pursuing its duty of protecting the best interest of the child. The courts of Alabama have examined witnesses, called witnesses and used investigators from social agencies for this purpose. We do not hold that a guardian ad litem could be appointed in a child custody case under the present provisions of rule 17(c), Alabama Rules of Civil Procedure, but such interpretation could be possible. In any event, our Supreme Court has ... rule-making power, and could promulgate such rule if deemed appropriate."
54 Ala. App. at 624–25, 311 So.2d at 448.
Authority for appointing a guardian ad litem in a contested divorce case has been cited in other cases. In C.J.L. v M.W.B., 879 So.2d 1169 (Ala. Civ. App. 2003), the Court of Civil Appeals stated that § 12-15-1(8), Ala. Code 1975, allows for the appointment of a guardian ad litem in a custody case. In 2003 when C.J.L. was issued, § 12-15-1(8) referred to a "delinquent act" by a juvenile. Former § 12-15-1(12), Ala. Code 1975, defined a "guardian ad litem" as "a licensed attorney appointed by a court to defend or represent a child in any action in which the child may be a party." However, former § 12-15-1 et seq., Ala. Code 1975, concerned juvenile-court proceedings, not domestic-relations proceedings.
Section 12-15-1 et seq. has been revised, reorganized, and parts repealed. The Alabama Juvenile Justice Act is now codified at § 12-15-101 et seq., Ala. Code 1975.
In Thomson v. Shepard, 225 So.3d 627 (Ala. Civ. App. 2016), the parties were before the domestic-relations division of the circuit court challenging an amended final judgment of divorce. The father argued that the trial court had erred by appointing a guardian ad litem to represent the children and ordering the father to pay a portion of her fees. The Court of Civil Appeals stated:
" ‘Generally, a trial court has the authority to appoint a guardian ad litem to represent a child in a divorce proceeding and to order a reasonable fee to be paid for the guardian ad litem's services. See § 26–2A–52, Ala. Code 1975, and Rule 17, Ala. R. Civ. P.’ Roberts v. Roberts, 189 So.3d 79, 81 (Ala. Civ. App. 2015)."
225 So.3d at 633. Section 26-2A-52, Ala. Code 1975, which deals with guardians and estates, is part of the Alabama Uniform Guardianship Act. Section 26-2A-20(3), Ala. Code 1975, defines "court" as "any probate court of this state." That act is inapplicable to domestic-relations proceedings. Roberts v. Roberts, 189 So.3d 79 (Ala. Civ. App. 2015), cited as authority in Thomson, involved a question of paternity. Section 26-17-612(b), Ala. Code 1975, provides that, in parentage proceedings, "the court shall appoint a guardian ad litem to represent a minor ... child if the child is a party or the court finds that the interests of the child are not adequately represented."
In D.T. v. W.G., 255 So.3d 764 (Ala. Civ. App. 2017), the adoptive parent argued that the probate court had erred in not appointing a guardian ad litem to represent the child in a proceeding involving grandparent visitation. With regard to Rule 17, Ala. R. Civ. P., the Court of Civil Appeals explained:
"We turn now to the adoptive parent's argument that the probate court's judgment should be reversed because the probate court failed to appoint a guardian ad litem for the child, which she contends was required by Rule 17(c), Ala. R. Civ. P.5 The adoptive parent filed a motion seeking the appointment of a guardian ad litem for the child on August 5, 2016, four days before the date set for trial. The probate court declined to appoint a guardian ad litem for the child.6
" Rule 17(c) reads, in pertinent part, as follows: ‘The court shall appoint a guardian ad litem (1) for a minor defendant, or (2) for an incompetent person not otherwise represented in an action and may make any other orders it deems proper for the protection of the minor or incompetent person.’ Thus, the rule requires the appointment of a guardian ad litem for a minor defendant.7 However, the record does not indicate that the child in the present case was a defendant in the action. We therefore cannot agree with the adoptive parent that the probate court violated Rule 17(c) by declining to appoint a guardian ad litem for the child.
"The adoptive parent also relies on English v. Miller, 370 So.2d 968 (Ala. 1979), to support her argument that appointment of a guardian ad litem was required in the present case. At issue in English was the ownership of the funds in two savings accounts. English, 370 So.2d at 969. Ora Mae English contended that her deceased brother, Leroy English, had given the funds in the accounts to her. Id. Leroy's former wife, Edna Faye English, claimed that the
funds had been awarded to her and their two children in a divorce action. Id. Each account indicated that the account holders were Leroy or Ora Mae as trustee for one of the two children. Id. Our supreme court reversed the trial court's judgment awarding the funds to Ora Mae because the trial court had failed to make the children, who had a potential interest in the funds and were therefore indispensable parties under Rule 19(a), Ala. R. Civ. P., parties to the action or to appoint a guardian ad litem for them. Id. The supreme court noted that a guardian ad litem should be appointed on remand because of ‘[t]he possibility that the children's interest, if any, is adverse to the interest of those made parties, including their mother, Edna Faye English.’ Id.
" English is inapposite here, however, because the basis for the supreme court's reversal of the trial court's judgment was its conclusion that the children in English were indispensable parties to the action. The child in the present case is not a party to the action; nor does the adoptive parent argue that the child is a necessary or indispensable party to the action. We conclude, therefore, that English does not require the probate court to appoint a guardian ad litem for the child.
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"5 The adoptive parent cites other statutes that require the appointment of a guardian ad litem in other types of actions: Ala. Code 1975, § 12–15–304 (requiring appointment of a guardian ad litem for a child in dependency and termination-of-parental-rights cases when the child is a party); § 26–10A–22(b) (requiring appointment of a guardian ad litem for the child in a contested adoption proceeding); and § 26–17–612(b) (requiring appointment of a guardian ad litem for a child who is a party to a paternity proceeding). However, none of those statutes are applicable to visitation proceedings in the probate court under § 26–10A–30.
"6 The adoptive parent indicates that the probate court denied her motion; however, no ruling on the motion appears in the record. The paternal grandmother appears to admit that the motion was, in fact, denied, and no order appointing a guardian ad litem is contained in the record. Thus, for purposes of this opinion, we will consider the motion seeking appointment of a guardian ad litem for the child as having been denied.
"7 Rule 17(c) permits a court to ‘make any other orders it deems proper for the protection of the minor’; however, the rule does not require that such an order be entered."
D.T. v. W.G., 255 So.3d at 770-71.
In Pitts v. Priest, 990 So.2d 917 (Ala. Civ. App. 2008), the mother argued that the trial court erred by failing to appoint a guardian ad litem for the children in the parties' contested divorce proceeding. The mother cited Wheeler v. Antinoro, 660 So.2d 1354 (Ala. Civ. App. 1995), and Gunter v. Gunter, 911 So.2d 704 (Ala. Civ. App. 2005), in support of her argument. The Court of Civil Appeals explained that in Wheeler the court reversed the trial court's judgment, concluding that the trial court had erred by failing to appoint a guardian ad litem for certain children when the action pertained to the garnishment of a trust of which those children were beneficiaries. 660 So.2d at 1355. In Gunter, the Court of Civil Appeals concluded that the trial court had committed reversible error when it failed to appoint a guardian ad litem for the wife's stepdaughter when the divorce judgment awarded the wife certain personal property in which her stepdaughter held an interest. 911 So.2d at 709. The Court of Civil Appeals stated:
"However, Wheeler and Gunter are distinguishable from the case now before us. Both Wheeler and Gunter pertained to an award to another party of personal property in which the children in those cases held an interest. In the present case, the trial court did not award a party personal property in which the children held an interest. We, therefore, conclude that the trial court did not err in failing to appoint a guardian ad litem for the children. See McClelland v. McClelland, 841 So.2d 1264, 1269 (Ala. Civ. App. 2002) (concluding that the trial court did not exceed its discretion in declining to appoint a guardian ad litem in a divorce proceeding)."
Pitts v. Priest, 990 So.2d at 926.
Although the appointment of a guardian ad litem to represent a child's interest in property subject to division in a divorce proceeding is appropriate, the guardian ad litem in such a case is representing the child's interests insofar as the child has an interest in the property subject to division. Such an appointment would not involve a guardian ad litem opining as to custody.
This Court has added to the confusion on the appointment of a guardian ad litem in a divorce proceeding when custody is an issue. In Ex parte R.D.N., 918 So.2d 100 (Ala. 2005), we addressed whether the fundamental principles of due process are violated when a guardian ad litem communicates to the trial judge ex parte her recommendations regarding custody, without the knowledge or consent of the parties and without the parties' having had an opportunity to contest those recommendations in open court. This Court relied on caselaw, citing former § 12-15-1(12) as authority for permitting the use of a guardian ad litem in a custody case.
I now turn to Rule 17, Ala. R. Civ. P., which is also cited as authority for the appointment of guardian ad litem in a contested divorce proceeding involving custody. Rule 17 provides:
"a) Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in that person's own name without joining the party for whose benefit the action is brought. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
"(b) Capacity to Sue or Be Sued. The capacity of a party, including one acting in a representative capacity, to sue or be sued shall be determined by the law of this state.
"(c) Minors or Incompetent Persons. Whenever a minor has a representative, such as a general guardian or like fiduciary, the representative may sue in the name of the minor. Whenever an incompetent person has a representative such as a general guardian or a like fiduciary, the representative may sue or defend in the name of the incompetent person. If a minor or an incompetent person does not have a duly appointed representative, that person may sue by that person's next friend. The court shall appoint a guardian ad litem (1) for a minor defendant, or (2) for an incompetent person
not otherwise represented in an action and may make any other orders it deems proper for the protection of the minor or incompetent person. When the interest of an infant unborn or unconceived is before the court, the court may appoint a guardian ad litem for such interest. Moreover, if a case occurs not provided for in these rules in which a minor is or should be made a party defendant, or if service attempted upon any minor is incomplete under these rules, the court may direct further process to bring the minor into court or appoint a guardian ad litem for the minor without service upon the minor or upon anyone for the minor.
"(d) Guardian Ad Litem; How Chosen. Whenever a guardian ad litem shall be necessary, the court in which the action is pending shall appoint to serve in that capacity some person who is qualified to represent the minor or incompetent person in the capacity of an attorney or solicitor, and must not select or appoint any person who is related, either by blood or marriage within the fourth degree, to the plaintiff or the plaintiff's attorney, or to the judge or clerk of the court, or who is in any manner connected with such plaintiff or such plaintiff's attorney, or who has been suggested, nominated, or recommended by the plaintiff or the plaintiff's attorney or any person for the plaintiff. If the guardian ad litem is to be appointed for a minor fourteen (14) years of age or over, such minor may, within thirty (30) days after perfection of service upon the minor in such cause, have the minor's choice of a guardian ad litem to represent the minor in said cause certified by an officer authorized to take acknowledgments, but if such minor fails to nominate a guardian ad litem within the thirty-(30-) day period or before any hearing set in the action, whichever is earlier, the court shall appoint a guardian ad litem as before provided. In all cases in which a guardian ad litem is required, the court must ascertain a reasonable fee or compensation to be allowed and paid to such guardian ad litem for services rendered in such cause, to be taxed as a part of the costs in such action, and which is to be paid when collected as other costs in the action, to such guardian ad litem."
Rule 17(c) provides for the appointment of a guardian ad litem for a minor defendant or if the minor should be made a party defendant. Clearly, Rule 17(c) does not apply to a child in a contested divorce case in which custody is at issue. Children are not defendants in their parents' divorce action. Likewise, Rule 17(d) does not apply. Rule 17(d) addresses how a guardian ad litem is chosen. Even if the phrase in Rule 17(d) "whenever a guardian ad litem shall be necessary" is relied upon, it does not govern a private divorce action involving custody because, again, children are not parties to their parents' divorce proceeding.
As the Court of Civil Appeals noted in Smith v. Springsteen, 385 So.2d 56, 59 (Ala. Civ. App. 1980), the purpose of Rule 17 is to protect the defendant from subsequent action by the party actually entitled to recover and to ensure that a judgment will have res judicata effect. See also Rule 17(a), Fed. R. Civ. P., Advisory Committee Notes 1966 Amendment (noting that the function of the rule "is simply to protect the defendant against a subsequent action by the party actually entitled to recover, and to insure generally that the judgment will have its proper effect as res judicata").
Without any apparent statutory authority to appoint a guardian ad litem in a contested divorce action involving two fit parents where custody is at issue or authority under our procedural rules, the trial court does have inherent power in equitable proceedings. However, appointing a guardian ad litem in a divorce case involving custody should never have become commonplace. First, many contested divorce cases involve two fit parents, one or both of whom will be granted custody of the child. I recognize that there is almost always bitterness between parents in a custody fight. However, even parents involved in an acrimonious divorce with bitter feelings toward each other are inherently the ones focused on their child's best interests. With the trial court in a custody case charged with ascertaining the child's best interests, and the parents focused on the child's best interests, a guardian ad litem is unnecessary, at least in the hybrid role that has evolved in Alabama.
I note that the Child Abuse Prevention and Treatment Act, 42 U.S.C. § 5106a(b)(2)(B)(xiii), requires that, as a prerequisite to receiving federal grant funds for use in the prevention and treatment of child abuse, states must enact
"(xiii) provisions and procedures requiring that in every case involving a victim of child abuse or neglect which results in a judicial proceeding, a guardian ad litem, who has received training appropriate to the role, including training in early childhood, child, and adolescent development, and who may be an attorney or a court appointed special advocate who has received training appropriate to that role (or both), shall be appointed to represent the child in such proceedings --
"(I) to obtain first-hand, a clear understanding of the situation and needs of the child; and
"(II) to make recommendations to the court concerning the best interests of the child .... "
Section 12-15-304(c), Ala. Code 1975, provides that a guardian ad litem receive training before being appointed by the juvenile court in a juvenile-dependency or termination-of-parental-rights case. In 2018, the Alabama Judicial College and the Alabama Court Improvement Program sponsored a "Guardian ad litem Certification Course," which was approved for Alabama State Bar Continuing Legal Education credits. Although the course materials address some of the caselaw I cite in this special writing, no authority is cited for the appointment of a guardian ad litem in a domestic-relations case, nor were guidelines provided for a guardian ad litem in such a case. I do note that it appears there had been so much confusion as to the role of a guardian ad litem in a domestic-relations case and that such an appointment had become so common that those guardians ad litem appointed in domestic-relations cases were paid out of the Fair Trial Tax Fund, which is funded with taxpayer moneys. However, since 2010, the state comptroller no longer accepts attorney-fee declarations for the payment of guardian ad litem fees in domestic-relations cases. The state comptroller noted that Rule 17(d), Ala. R. Civ. P., suggests that guardians ad litem appointed in civil cases, including domestic-relations cases and custody disputes, are not entitled to be paid at the State's expense.
Second, a guardian ad litem is not an expert in child custody, but his or her recommendation is given considerable weight by the trial courts, the Court of Civil Appeals, and this Court. The guardian ad litem in a child-custody case is essentially giving a lay opinion as to the ultimate issue –- custody. Nothing in the background of a guardian ad litem necessarily qualifies him or her as an expert in behavioral or social sciences. The guardian ad litem's lay opinion is based on observations from interviews and collateral sources such as medical records, school records, mental-health records, etc. Lawyering skills are insufficient to support the weight given to the guardian ad litem's lay opinion, not to mention the conflict the lay opinion creates with the guardian ad litem's advocacy role. It should be noted that judges may conduct in camera interviews with minor children who are the subject of divorce-custody proceedings, provided that the parents consent to such interview. How is it that a guardian ad litem in a divorce-custody case is cloaked with more authority than the trial judge? Where is the concept and right of due process in one of the more important cases a trial court may decide?
I recognize that our caselaw provides that a trial court is not bound to follow the recommendation made by a guardian ad litem. See, e.g., C.J.L. v. M.W.B., supra. Of course a trial court is not bound by the recommendation of a guardian ad litem, because the trial court in a custody case is the factfinder and decider of the ultimate issue of custody. I question the need for such a statement if the guardian ad litem's lay opinion is not being given special credence by the courts. We have made a guardian ad litem in a divorce-custody case an adjunct special master for custody and visitation issues, carved out as a niche in the middle of the dissolution of a marital partnership overseen by the trial judge.
I recognize that Rule 17(a) provides for several methods of ensuring that the real party in interest prosecutes a case. It permits ratification, joinder, or substitution. Ratification would be the only method applicable in this case. However, it does not support treating the guardian ad litem's custody petition as if it had been filed by the father. This is axiomatic because of the ill-defined and hybrid role of the guardian ad litem in such cases and, in particular, the guardian ad litem's actions in the present case. Ratifying the guardian ad litem's action in petitioning for modification of custody ignores the guardian ad litem's lay-opinion role in recommending to the court which parent should have custody. It would be impossible to discern the prejudice the mother in this case suffered by having to defend custody of the children against both the guardian ad litem and the father.
Here, there was particularly egregious behavior of the guardian ad litem in actually filing a petition to modify custody and deciding which witnesses to call to support his petition, all while the father's attorney sat as essentially "second chair." The guardian ad litem went well beyond most well meaning guardians ad litem in filing the petition to modify custody. In addition to being attorney for the children and a default attorney for the father, the guardian ad litem then gave his lay opinion as to the proper award of custody.
Although it would easy to think of the guardian ad litem's behavior in this action as an aberration, in Bragg, supra, the guardian ad litem filed a motion requesting emergency transfer of custody pending a hearing in the father's custody-modification action. The Court of Civil Appeals noted that it was not addressing whether the guardian ad litem had such authority.
I also recognize that an issue such as custody may be tried by consent. In Rich v. Rich, 887 So.2d 289 (Ala. Civ. App. 2004), the father argued that the trial court's judgment should be reversed because the mother failed to file a pleading asserting that a change of custody would materially promote the child's best interests. The trial court had entered a judgment in August 2001 providing that another custody decision would be entered after a hearing to be held in May 2002. Neither party in Rich sought appellate review of the August 2001 judgment, and both parties consented to the trial court's May 2002 custody review for purposes of deciding who would have permanent custody of their child. In this case, the mother responded to the guardian ad litem's petition to modify custody filed in conjunction with his request for an "emergency hearing." As noted earlier, the request was not filed in the juvenile court, nor was it treated as an emergency. Part of the confusion in this case may have been due to the courtroom time constraints of the trial judge -- a not uncommon occurrence in domestic-relations proceedings -- that resulted in several hearings being held at which the parties never were able to fully address any one issue at a given time. Although the father did state on the record in the fourth hearing that he wanted custody, it is understandable that the parties were confused as what was before the trial court at that time. Moreover, why would the attorney for any parent in a contested divorce case object to the actions of the guardian ad litem in its advocacy role? A guardian ad litem still gets the last word in his or her other role by giving his or her lay opinion (or, as the Court of Civil Appeals referred to it in Jones v. McCoy, his "quasi-expert opinion") as to the ultimate issue of who will have custody. Unlike the trial court who answers to the appellate courts and the electorate, a guardian ad litem in a domestic-relations proceeding is essentially accountable to no one.
I find Clark v. Alexander, 953 P.2d 145, 151 (Wyo. 1998), to be instructive on why this Court should address this issue now:
"Generally, we will not address an issue raised for the first time on appeal absent special circumstances. Rowan v. Rowan, 786 P.2d 886, 889 (Wyo. 1990). However, ‘[t]he definition of the precise roles of the attorney and the guardian ad litem for children is still evolving and not without difficulty.’ S.S. v. D.M., 597 A.2d 870, 877 (D.C. App. 1991). In Wyoming, the role of an attorney or guardian ad litem in custody cases is not addressed by statute, and like many jurisdictions, case law has failed to clearly delineate the parameters of the duties incumbent upon appointment. Moreover, the juxtaposition of the separate roles of attorney and guardian ad litem into one ‘attorney/guardian ad litem,’ appears especially problematic. Given the lack of clear direction provided to those who must fulfill this role in Wyoming, and our certainty that the issues in this case will reappear in the future, we speak to those issues here.... "(Footnotes omitted.)
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As one law-review article stated with regard to the unclear role of the guardian ad litem:
"Because of the gravity and difficulty of making custody decisions, in the mid-twentieth century family courts and legislatures developed another ‘tool’: the guardian ad litem (‘GAL’). Again, an enormous amount of literature has been written about the ambiguous and highly controversial role of the GAL in private child custody disputes, which is beyond the scope of this article. Suffice it to say that no consensus exists on either the duties of the guardian ad litem or the form of advocacy one should use. In some states a guardian ad litem is not even an attorney or advocate at all.
"The guardian ad litem has been defined as any and all of the following: a court-appointed investigator who makes recommendations to the court about who should have custody; a lawyer who represents a child; an advocate for the ‘best interest’ of the children; and a facilitator/mediator. The GAL is sometimes called the ‘eyes and ears of the court.’ In some states, GALs are allowed to provide facts and opinions to the court without taking the witness stand or being subject to cross-examination. Consequently, everything they are asked to report to the court about their conversations with children and parents is hearsay. GALs serve ‘a quasi-judicial role ... cloaked in judicial immunity.’
"Because of this role, parents' attorneys advise their clients to be cooperative with GALs, as GALs' recommendations carry a tremendous amount of weight. But many scholars consider it paradoxical that the court appoints a
GAL because of the court's inherent distrust of parents (discussed above), yet then the GAL invariably gathers most of her ‘facts’ and forms her opinions based on interviews with parents.
"The GAL essentially serves as an expert witness without any expert qualifications and without having to be a witness. First of all, a GAL cannot be qualified as an ‘expert’ because there is no such thing as a lay or attorney ‘expert’ in custody cases. And unlike child custody evaluators, who are frequently psychologists, GALs are not required to possess any specific credentials. There is not even a consensus on the appropriate ‘training’ for GALs. In most states, the way to get on the ‘list’ for appointments is to attend a continuing education course, agree to accept assignments, and then continue accepting assignments. GALs become experts by default: ‘The more often a particular individual performs that role, the more likely that the trial court will rely on him [or her] as if he [or she] were an expert.’ "
Dale Margolin Cecka, Inequity in Private Child Custody Litigation, 20 City University of New York L. Rev. 203, 220–22 (2016)(footnotes omitted).
Accordingly, I would address the issue of the guardian ad litem's actions here; therefore, I must dissent.
Wise, J., concurs.