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In many cases involving children, the Rhode Island Family Court will appoint a lawyer or attorney familiar with Rhode Island family law and it's standards as a Guardian Ad Litem for the child(ren).

The role of the Guardian Ad Litem is typically to investigate the circumstances of the parents and protect the best interests of the minor children.  The Guardian Ad Litem will use his or her factual investigation and apply his or her findings to the standards set forth by the Rhode Island Supreme Court in the case of Pettinato v. Pettinato, 582 A.2d 909 (RI 1990).

The Pettinato case is the primary case in which our Rhode Island Supreme Court set forth the factors to be considered when determining "the best interests of the child." 

2)  The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

3)  The interaction and interrelationship of the child with the child's parent or parents, the child's siblings, and any other person who may significantly affect the child's best interest.

4)  The child's adjustment to the child's home, school and community.

5)  The mental and physical health of all individuals involved.

6)  The stability of the child's home environment.

7)  The moral fitness of the child's parents.

8)  The willingness and ability of each parent to facilitate a close and continuous parent-child relationship between the child and the other parent.

The formal report of virtually every Guardian Ad Litem will reference the Pettinato factors.  

So what does a Rhode Island family law attorney do if the Guardian Ad Litem's report and recommendations are adverse to their client?  Sadly, this is where things become problematic.  Too many Rhode Island family law attorneys will advise their client that the Guardian's Report "went against them", "that the judge will give the Guardian's Report tremendous weight/importance"  and therefore it is not practical to challenge the recommendations at a full hearing on the merits.  

So what do you do if a Guardian Ad Litem's report is not in your favor any you believe that the recommendations to the court are clearly wrong.

First, family law clients and attorneys need to discuss the Guardian's report and recommendations and what they mean from both a legal and a practical standpoint.  Why?  Because you do not want to spend time, effort and money challenging something if you don't understand what it means to you as a client and particularly as a parent.

Second, clients/parents must understand that a Guardian's Report is based solely upon that solidity of the Guardian Ad Litem's investigation.  

Third, clients/parents need to understand that not every Guardian Ad Litem will perform the same type or depth of investigation.  Therefore, some recommendations will be based upon a solid investigation and others may be based upon a weak investigation.

Fourth, clients/parents need to understand that some Rhode Island family law attorneys are not willing to question or challenge the recommendation of another attorney who may be a well-known attorney by reputation or a friendly colleague. 

Whether you are a family law client or a litigant representing yourself before the Rhode Island Family Courts, you must be aware that a Guardian Ad Litem's recommendation and report is just that... a recommendation.  The court is NOT bound by the Guardian Ad Litem's recommendation and it is the judge, based upon all the factors and all of the evidence presented who makes the final decision.

Why is it important to know these things?

Imagine that you are a judge.  You are presented a report and recommendation by a well-known Guardian Ad Litem that you assigned to the case.  The matter goes through a full trial.  During the Judge you hear all the evidence from a client/parent who was unwilling to accept the report and settle the case.  As the Rhode Island Family Court judge you want to make sure that any information and recommendation you are given is accurate and is based upon sound investigation so that you make the best possible decision.

Now as the judge you hear testimony and take evidence from people that you believe the Guardian Ad Litem should have spoken to before making his or her recommendation.  There is no explanation why the Guardian didn't consider these various people or records.  

In the end, as the Judge you believe that the Guardian simply didn't look deep enough or drew conclusions that were not reasonable because important information was not considered.

As the judge, how much significance would you give to the Guardian Ad Litem's recommendations if you believe the Guardian's investigation was not thorough enough?  Would you give the recommendations very little significance?  Perhaps even none?

This is not a rare scenario.  A Rhode Island Family Court judge wants to make the best decision possible for minor children.  The judge may well find that the Guardian Ad Litem's report should be given very little consideration when making his or her decision because the Guardian neglected to speak with key people, look at important records that were available, or to ask important questions which may substantially impact the Guardian's recommendation and the court's decision.

In my history working with Rhode Island Divorce Attorneys, I have witnessed too many attorneys who advise their client to settle a case when a Guardian Ad Litem's report and recommendations are unfavorable to their client.  This can be a grave mistake.

Individuals who represent themselves and attorneys with their client's best interests at heart need to scrutinize not simply the Guardian Ad Litem's recommendations, but more particularly the factual investigation.

In the end, a good Rhode Island Family Lawyer does not simply defer to a Guardian Ad Litem's recommendations simply because he or she holds the title of Guardian Ad Litem.

Consider this analogy. Carports are rarer these days but the idea is simple.  A carport is a roof that protects a car or truck and its owner/driver from the elements of sun, snow, wind, rain, etc...   This roof is held up at each corner by a post that must be strong enough to bear the weight of the roof and withstand the various elements that are thrown at them.

The recommendation of the Guardian Ad Litem is the roof of the carport.  A  judge would like to rely upon it for a reasonable level of stability just like the driver of a car sitting in his car under the carport wants to be to trust that the carport's roof will keep him safe.

Yet what happens if you show the driver of the car (i.e. the Judge) that the posts (i.e. the investigation) holding up the roof (i.e. the recommendations) are filled with termites, are made of weak wood, and can't support the roof (i.e. the investigation doesn't support the recommendations)? 

Is a judge likely to rely upon the builder (i.e. the Guardian Ad Litem) in that instance, or remain under the builder's roof (i.e. rely upon the Guardian Ad Litem's recommendations)?  The answer is . . . no. 

In short, a Guardian Ad Litem's Report is not the end.  The judge has the final word based upon all the evidence.

Carefully scrutinize the recommendations and particularly the investigative report upon which they are based.  If you are able to invalidate or weaken the investigation, then you remove the support for the recommendations. 

If you show a weak investigation then the Guardian's report and recommendations may not even be given the weight of the paper it is written on.

Here is a quick coaching tip for anyone who has received a Motion to Change or Terminate Legal Custody that will be heard before the Rhode Island Family Courts.

First, if you must represent yourself in the Rhode Island Family Court System regarding this motion, make sure you understand the motion itself.

If the motion says "Legal Custody" and NOT "Physical Custody" or "Placement" then unless the motion uses some other words relating to where the child resides, then it deals with the fundamental right you have as a parent to participate in the decision making process for your biological or legally adopted minor children regarding 'major aspects" of the child's life. 

These "major aspects" of the child's life have generally been held to include (a) medical care, treatment and anything constituting a reasonably important health-related concern, (b) the religious upbringing of the child, (c) the child's education and schooling, (d) nature and form of discipline for the child, and (d) anything of a reasonably substantial nature affecting the general welfare of the child.

Generally speaking, if no order has been previously been issued by Rhode Island or any other state's court, then as long as there is no dispute as to who the biological parents are, a general presumption is often made (as it should be) by most Rhode Island family court judges, that each parent has an equal say as to the major aspects of the child's legal custody. 

When there is disagreement between the parents of the child, then the Court is called upon in a legal custody dispute to hear both sides of the issue and determine what is in the best interests of the minor child.  Note that I did not say that the judge rules in favor of one parent or another.  The court takes a special interest in protecting the minor child and, if necessary, the judge will fashion a remedy is in the best interests of the child based upon the circumstances and the disagreement of the parents.

In short, if "Legal Custody" and not "Physical Custody" or 'Placement" is the issue, the issue is not whether you will lose your child.  The issue will be whether the court will agree with your decision as a legal custodian of your minor child, or whether the judge finds any substantial conditions or circumstances regarding your ability to make proper decisions for your minor child is impaired to such a degree that your right to make decisions for your minor child should be limited or denied entirely.

Generally speaking, it has been my experience in my divorce and family law practice that judges are very hesitant to remove a parent's decision making rights as a legal custodian without substantial just cause.  Ultimately, a good rule of thumb I have followed is this.  If the court gets the impression that you are unable to make good decisions for yourself, its a safe bet that the judge may not believe you can make good decisions for a minor child.

What might constitute just cause to deny your legal custodial rights?  Criminal charges, Alcohol Addiction, Drug Addiction, Domestic Violence, and substantial inability to maintain employment and support your child or participate in your child's life for an extended period of time are just a few.

In the end, know what you are defending against and know what your shortcomings are and how to address them to the court.  Be respectful and present yourself in the best light possible.  If something in your present or your past doesn't make you look good to the court, try to make sure you get the time to explain to the court how it is unrelated to the decisions for your child or how your experience has helped you learn to make better decisions for your child.  An attitude of caring for your child's well-being over your own is always a plus.