This issue should be settled by now. A guardian ad litem (a lawyer appointed to represent a person not capable of representing himself, typically a child) has the same capability to represent his or her client as any other attorney. It follows that the guardian ad litem (GAL) is subject to all the constraints that would govern any other advocate before the court, specifically in this case, the prohibition against ex parte communications with the judge.
The case of Ex parte R.D.N., Case No. 1030864 (Ala. March 4, 2005) is to my knowledge the first family law opinion from Justice Nabers. The trial court below had ruled in favor of custody for the mother (the status quo) after an ex parte conversation with the GAL. The Court of Appeals affirmed without opinion.
The Alabama Supreme Court reversed, saying:
The guardian ad litem’s recommendation that the child remain with the mother was not presented as evidence produced in open court and was based on information that may or may not have been properly presented to the court. As a result, the father was denied the opportunity to respond with rebuttal evidence and to present reasons why the recommendation of the guardian ad litem should not be followed. The mother was also denied the opportunity to respond and present reasons why the guardian ad litem’s recommendation should be followed.
. . . Under Ex parte Berryhill, [410 So. 2d 416 (Ala. 1982)], and Cleveland Board of Education, [470 U.S. 532, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985)], we hold that, in these circumstances, the trial court’s ex parte communications with the guardian ad litem and its reliance upon her recommendation, given to the court as part of an ex parte communication, violated the fundamental right of the father to procedural due process under the Alabama and United States Constitutions..
The Court reversed and remanded the case with directions.