Child Custody and Visitation in West Palm Beach, FL

In a child custody and visitation proceeding, a guardian ad litem may not examine witnesses in depositions and in trials. In Millen v. Millen, the Florida Court of Appeal recently stated: “The Millens married on September 11, 2003, in London, England. They later returned to the United States and resided in Florida. By June of 2010, the marriage had begun to unravel. The husband filed for divorce on September 9, 2010. The dissolution of marriage trial commenced July 16, 2012. The guardian ad litem, a psychologist appointed to represent the parties’ minor child, requested the trial court’s permission to ask witnesses questions at trial.

The trial court asked the parties whether they had any objection to the guardian’s questioning of witnesses. Neither party objected. Throughout the four-day trial, the guardian ad litem questioned the parties and six witnesses. The guardian ad litem’s questions covered substantially similar subject matter that the wife’s questions covered. The questions also elicited comparable testimony to that which the wife’s questions elicited. The trial court subsequently entered its final judgment, after which the husband appealed. The husband contends for the first time on appeal that the guardian’s participation in the trial requires reversal. We disagree. We first note, ‘[i]t is a mistake to hold a pro se litigant to a lesser standard than a reasonably competent attorney.’ Kohn v. City of Miami Beach, 611 So.2d 538, 539 (Fla. 3d DCA 1992). Secondly, the guardian ad litem serves an important fact-finding role in cases that involve minor children. Section 61.401, Florida Statutes (2010), makes it abundantly clear that the guardian ad litem is to ‘act as next friend of the child, investigator or evaluator, not as attorney or advocate.’ To that end, ‘[t]he duties and rights of non attorney guardians do not include the right to practice law.’ § 61.403(7), Fla. Stat. (2010). Additionally, any participation by the guardian ad litem in trial proceedings must be ‘through counsel.’ § 61.403(6), Fla. Stat. (2010). Examination of witnesses constitutes the practice of law and is a function reserved for licensed attorneys. See e.g.State v. Foster, 61A So. 2d 747, 749 (Fla. 1st DCA 1996) (concluding that ‘the taking of a deposition constitutes the practice of law’). The trial court thus erred when it allowed the guardian ad litem to question the witnesses. See § 61.401, Fla. Stat. (2010). See also Perez v. Perez, 769 So. 2d 389 (Fla. 3d DCA 1999).”

To speak with a child custody and visitation attorney in West Palm Beach, FL, contact Matthew Lane & Associates, P.A. at (561) 651-7273.

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