Opinion
No. FA96-0537581S
March 5, 2004
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO REMOVE GUARDIAN AD LITEM
The defendant Bonnie Rubenstein in the above-entitled matter filed a motion for removal of the guardian ad litem for the minor child. Said motion was dated and filed on January 24, 2004. The court heard evidence from the parties on February 27, 2004 and March 4, 2004. The court has reviewed the exhibits submitted by the parties, analyzed the testimony of the witnesses and reviewed the applicable portions of the court file.
As previously stated by the court prior to the commencement of the hearing, it is the burden of the defendant in this case, Bonnie Rubenstein, to allege and prove that the GAL should be disqualified from representing the interests of the minor child because her continued representation prejudices the defendant from prosecuting her case. Strobel v. Strobel, 64 Conn. App. 614 (2001). A party generally lacks standing to disqualify a GAL for a minor child without proof of prejudice to the prosecution or defense of her or his case. Wilkinson v. Wiegand, Superior Court at Hartford, Docket No. FA92-0610915 (July 10, 1997) ( 20 Conn.L.Rptr. 181).
As was found in the Wilkinson case by Judge Munro, this court finds that there is no constitutional provision, statute or common-law provision that would confer standing on the defendant, the mother of the minor child, or otherwise as an interested party, to assert her position on behalf of her minor child. The statutory scheme for the appointments of guardian ad litem in family, juvenile and probate matters does not include any provision for another party, including a parent, to challenge the individual who was appointed to the position. C.G.S. § 45a-132; in particular, subsections (d) and (f). Because due process rights are personal and cannot be asserted vicariously, defendant must prove specific prejudice to the prosecution or defense of her case as a grounds for disqualification.
The court concludes after reviewing the evidence that defendant's motion must fail. The defendant has failed to prove that she is prejudiced in prosecuting her claim for custody and/or access with the minor child based upon the prior and/or present positions taken by the GAL on behalf of the minor child. The guardian ad litem is mandated to act in the best interest of the minor child regardless of whether it is contrary to even the stated desires of the minor child. Newman v. Newman, 235 Conn. 82, 96 (1995).
The defendant has failed to prove that the guardian ad litem's actions and/or positions taken to date prejudice her in her ability to present her case.
(1) She has failed to prove prejudicial and/or inappropriate conduct between the GAL and the therapist as alleged in paragraphs 6 and 8 of her motion. Said allegations were couched in terms tantamount to an alleged conspiracy between the guardian ad litem and the therapist to deprive the defendant access to the child and the therapist. The defendant has failed to prove conduct by the GAL and/or therapist prejudicial to her prosecution of her motion for custody and/or visitation.
(2) The defendant further alleged that the GAL failed to obtain evidence or information regarding the welfare of the minor child and complaints from the defendant as to the alleged inappropriate conduct of the plaintiff involving the minor child in 1997. The defendant has also failed to prove said allegations.
(3) The defendant alleged in paragraph 1 of her motion that the GAL "years before meeting the defendant, had made up her mind" concerning mother's conduct and the appropriate punishment therefore. In addition, she alleges that the GAL has already made up her mind as to custody and access of the child. The court finds that said allegations have not been proven.
(4) In paragraph 2, the defendant further contends that the GAL has "advocated her positions" "abandoned the role of GAL to gather information rather than take an advocacy position" and further "she seeks to advise the court always contrary to the interest of the mother." The role of the GAL is not to advocate the position of a party. The GAL, as previously stated, is to act in the best interest of the child, which in many cases, is contrary to the interests of a parent and even contrary to the wishes of a child. The attorney for the minor child has the obligation to advocate the position of the child not the guardian ad litem. Newman, supra at 96. The guardian ad litem should seek out information to formulate her opinion as to the best interest of the child.
(5) Paragraph 3 and 4 allege inappropriate conduct by the GAL. The court finds that evidence shows that DCF was already notified of the alleged abuse to the minor child prior to notification to the GAL and that the GAL engaged in no conduct prejudicial to the defendant's ability to present her claims for custody and/or visitation.
(6) Finally, paragraphs 9 and 10 concerning alleged attorneys fees and unrelated malpractice action involving the defendant's attorney and the GAL's counsel and husband have not been proven to prejudice the defendant from prosecuting her motion for custody and visitation.
The claims made by the defendant deal with the credibility of the GAL's testimony and the weight to be given to said testimony by the trier of fact at trial.
Therefore, the court denies the defendant a motion to disqualify and/or remove the guardian ad litem as representative of the minor child.
Devine, J.