Florida/Georgia Personal Injury & Workers Compensation

...authority under Florida law. In Florida, judges may appoint guardians ad litem in marriage dissolution, custody, and similar proceedings “to act as next friend of the child, investigator or evaluator_” Fla. Stat.Ann. § 61.401 (West Supp.1995). Section 61.403 of the Florida Statutes provides a nonexclusive list of the guardian’s duties....

...ing any stipulation or agreement, whether incidental, temporary, or permanent, which affects the interest or welfare of the minor child, within 10 days after the date such stipulation or agreement is served upon the guardian ad li-tem. Fla.Stat.Ann. § 61.403 (West Supp.1995)....

...whom the child resides. Such order shall be obtained only after notice to all parties and hearing thereon; provided, however, that upon presentation of this order to the appropriate person or office, the guardian ad litem is authorized, pursuant to section 61.403(2), Florida Statutes, to inspect and copy any school and/or daycare records or medical records relating to the child(ren) without a hearing or consent of the parent(s)....

...Further, the trial court allowed the GAL to participate in the hearing by cross-examining witnesses, including the former wife, the former husband, a neighbor of the former husband, and a teacher of one of the children. Florida law allows the GAL to participate actively in the trial of a change of custody case, section 61.403(6), Florida Statutes (1993), but the failure to allow the GAL to be examined was reversible error....

...We have carefully reviewed the record related to these actions of the guardian, and we conclude that they were not so fundamentally unfair as to warrant a remand for a new hearing. The statute controlling the powers and authority of guardians ad litem is section 61.403, Florida Statutes (1995)....

...Subsection (5) of that statute mandates that the guardian file a written report. By necessity, the report will usually contain hearsay. The act of filing the report does not place the report *205 in evidence. Hearsay rules contained in the Florida Evidence Code apply to section 61.403....

...Accordingly, when a guardian attempts to testify to hearsay statements and a valid hearsay objection is raised, that objection should be sustained. The statute further mandates that the guardian shall act as the friend of the child and in the child's best interest. See § 61.403. However, the statute also states that the guardian shall not act as an advocate. See § 61.403....

...on 61.20(2). A typical guardian ad litem, such as the one in this case, does not meet the criteria of section 61.20(2). Further, we note that there is no similar exception to the rules of evidence in the statute pertaining to guardians ad litem. See § 61.403....

...1 (Summer 1995). Once appointed, the powers and authority of a guardian ad litem include investigation, discovery matters, requesting necessary examinations of the parties or the child, obtaining impartial examinations and making recommendations to the court. See § 61.403 Fla....

...unsel and guardian; Standard 3.1). In fact, Section 61.401, Florida Statutes (1997) specifically provides that the role of a guardian ad litem is "to act as next friend of the child, investigator or evaluator, not as attorney or advocate." See also, § 61.403 Fla....

...Section 61.401 states that the guardian shall not act as an advocate and the Guardian's role is defined as limited to the specific litigation in which the Guardian is appointed. See Roski v. Roski, 730 So.2d at 413; Black's Law Dictionary 70 (6th ed.1990). Section 61.403 delineates the Guardian's powers and authority in the context of trial court proceedings....

...'s wishes, and must serve as independent fact investigators. The filing of motions and a brief by the Guardian in appellate proceedings conflicts with these functions, and violates the statutory prohibition against Guardians acting as advocates. See § 61.403 Fla....

...issolution of marriage, modification, parental responsibility, custody, or visitation, if the court finds it is in the best interest of the child, the court may appoint a guardian ad litem to represent the child. As relevant to the issues before us, section 61.403, Florida Statutes (Supp.1990), stated: Guardians ad litem; powers and authority....

...l not be the same person.... The guardian ad litem shall be a party to any judicial proceeding from the date of the appointment until the date of discharge. Ch. 94-204, § 3, Laws of Fla. (amending § 61.401, Fla. Stat. (1993))(emphasis added). *396 Section 61.403, as pertinent here, was also amended: Guardians ad litem; powers and authority....

...The legislature clearly intended that the function of the guardian be one of "next friend" to the child. This role includes the power to investigate and evaluate the case, and to make recommendations to the trial judge which are consistent with the best interest of the child. See § 61.403(5), (8), Fla....

...Because this status is created by statute it can be defined by statute, and the statutes in question do just that. The legislature first chose to limit the guardian's role as a "party" by forbidding her from acting in a certain way, i.e. as an advocate for the child. Next, in section 61.403(2), (3), and (6), the legislature required the guardian to petition the court and file pleadings only through counsel—a "true" party could do so pro se....

...____________________________, Respondent. MOTION FOR APPOINTMENT OF GUARDIAN AD LITEM ( ) Petitioner ( ) Respondent requests that the court enter an order appointing a guardian ad litem with all powers, privileges, and responsibilities authorized in section 61.403, Florida Statutes, and state: 1....

...________________________________________________. 3. the guardian ad litem is a party to any judicial proceeding from the date of this order until the date of discharge and shall have all of the powers, privileges, and responsibilities authorized in section 61.403, Florida Statutes, to the extent necessary to advance the best interests of the minor child(ren)....

...he minor child(ren), and after proper notice may interview witnesses or any other person having information concerning the welfare of the minor child(ren). 6. the guardian ad litem shall maintain any information received from any source described in section 61.403(2), Florida Statutes, as confidential and shall not disclose such information except in reports to the Court served upon both parties to this cause and their counsel, or as directed by the Court....

...was represented by counsel as required by the Rules of Juvenile Procedure. The duties of a guardian ad litem and an attorney are not co-extensive, and here M.C.'s interests were protected by court-appointed counsel. Roski v. Roski, 730 So.2d 413 (Fla. 2d DCA 1999); § 61.403, Fla....

...lusions or recommendations contained in the report. See § 61.20, Fla. Stat. (1991); Kern v. Kern, 333 So.2d 17 (Fla. 1977). The mother argues that the same protection is not required for a report of a guardian ad litem that is submitted pursuant to section 61.403, Florida Statutes (1991). We disagree. Indeed, section 61.403(5) contemplates that a guardian's report will be submitted to the parties at least twenty days "prior to the hearing at which it will be presented unless the court waives such time limit." The father was not afforded an opportunity to rebut the contents of the report prior to the entry of the final order....

...Roski, 730 So.2d 413 (Fla. 2d DCA 1999); Scaringe v. Herrick, 711 So.2d 204 (Fla. 2d DCA 1998) (Blue, J., specially concurring). Cf. Singleton v. State, 582 So.2d 657 (Fla. 1st DCA 1991). The petition is GRANTED. ERVIN, PADOVANO and HAWKES, JJ., concur. NOTES [1] Section 61.403, Florida Statutes (2005), outlines the powers and authority of a GAL....

...w reversible error. However, we have previously cautioned trial judges against abdicating their decision-making responsibility to a guardian ad litem. See Scaringe v. Herrick, 711 So.2d 204 (Fla. 2d DCA 1998). We repeat the warning that, pursuant to section 61.403, guardians shall not act as advocates....

...D FOR_COUNTY, FLORIDA [[Image here]] MOTION FOR APPOINTMENT OF GUARDIAN AD LITEM *292 ( ) Petitioner ( ) Respondent requests that the Court enter an order appointing a guardian ad litem with all powers, privileges, and responsibilities authorized in section 61.403, Florida Statutes, and states: 1.The following minor child(ren) is (are) subject to this proceeding: [[Image here]] 2....

...The fees of the private guardian shall be paid by: ( ) Petitioner ( ) Respondent ( ) each party equally ( ) other, {specify} - 3. The guardian ad litem is a party to any judicial proceeding from the date of this order until the date of discharge and shall have all of the powers, privileges, and responsibilities authorized in section 61.403, Florida Statutes, to the extent necessary to advance the best interests of the minor child(ren)....

...he minor child(ren), and after proper notice may interview witnesses or any other person having information concerning the welfare of the minor child(ren). 6. The guardian ad litem shall maintain any information received from any source described in section 61.403(2), Florida Statutes, as confidential and shall not disclose such information except in reports to the Court served upon both parties to this cause and their counsel, or as directed by the Court....

...hird parties in connection with the guardian's investigation of this case. Section 61.404, Florida Statutes (1993), provides that a "guardian ad litem shall maintain as confidential all information and documents received from any source described in s. 61.403(2) and may not disclose such information or documents except, in the guardian ad litem's discretion, in a report to the court, served upon both parties to the action and their counsel or as directed by the court." *1253 Section 61.403(2), in turn, describes the following sources: "a specified person, agency, or organization, including, but not limited to, hospitals, medical doctors, dentists, psychologists, and psychiatrists......

...basis. There is no doubt that the guardian ad litem in this case expended many hours in the interests of the minor children. Under the circumstances, however, the order awarding attorney's fees to the guardian ad litem should be reversed. NOTES [1] Section 61.403(2), Florida Statutes (1993) provides as follows: "(2) The guardian ad litem, through counsel, may petition the court for an order directed to a specified person, agency, or organization, including, but not limited to, hospitals, medica...

..._____________________________, Respondent. MOTION FOR APPOINTMENT OF GUARDIAN AD LITEM () Petitioner () Respondent requests that the Court enter an order appointing a guardian ad litem with all powers, privileges, and responsibilities authorized in section 61.403, Florida Statutes, and states: 1....

...________________________________________________. 3. The guardian ad litem is a party to any judicial proceeding from the date of this order until the date of discharge and shall have all of the powers, privileges, and responsibilities authorized in section 61.403, Florida Statutes, to the extent necessary to advance the best interests of the minor child(ren)....

...he minor child(ren), and after proper notice may interview witnesses or any other person having information concerning the welfare of the minor child(ren). 6. The guardian ad litem shall maintain any information received from any source described in section 61.403(2), Florida Statutes, as confidential and shall not disclose such information except in reports to the Court served upon both parties to this cause and their counsel, or as directed by the Court....

...he dissolved marriage has standing to move to set aside a final judgment of dissolution and incorporated settlement agreement. We hold that a guardian ad litem does have such standing in the limited circumstances presented by the facts of this case. Section 61.403, Florida Statutes (1991), provides that guardians ad litem appointed to represent the best interests of children in dissolution actions "shall have the powers, privileges, and responsibilities to the extent necessary to advance the best interest of the child......

...." While the powers specifically enumerated in the statute do not include the authority to seek to have the parents' final judgment of dissolution set aside, they do include filing "such pleadings, motions or petitions for relief as the guardian ad litem deems appropriate or necessary... ." § 61.403(6), Fla....

...custody proceeding did not have the standing to challenge the procedures regarding the waiver any more than she had standing to challenge the admission of the psychotherapist's testimony. Here, the child was appointed a guardian ad litem pursuant to section 61.403, Florida Statutes (2002)....

...Section 61.401, Florida Statutes (2010), makes it abun *498 dantly 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 nonattorney 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....

...error, and counsel fails to take advantage of the opportunity, such error ... will not warrant reversal.’ Id. at 960 . While the trial court’s allowance of the guardian ad litem to question witnesses at trial was contrary to sections 61.401 and 61.403, reversal is not warranted because the error was not fundamental to the case....

...We withdraw our order to show cause in this petition for writ of prohibition seeking to disqualify the trial judge from conducting further proceedings in this divorce and custody dispute. While the court may have erred by entertaining the guardian’s unsworn motion for change of custody, see section 61.403(6), Florida Statutes (2001) (requiring a guardian to act through counsel), this conduct does not rise to the level requiring disqualification....

..., Respondent. MOTION FOR APPOINTMENT OF GUARDIAN AD LITEM _____ Petitioner _____ Respondent requests that the Court enter an order appointing a guardian ad litem with all powers, privileges, and responsibilities authorized in section 61.403, Florida Statutes, and states: 1....

.... 3. The guardian ad litem is a party to any judicial proceeding from the date of this order until the date of discharge and shall have all of the powers, privileges, and responsibilities authorized in section 61.403, Florida Statutes, to the extent necessary to advance the best interests of the minor child(ren). 4....

...child(ren), and after proper notice may interview witnesses or any other person having information concerning the welfare of the minor child(ren). 6. The guardian ad litem shall maintain any information received from any source described in section 61.403(2), Florida Statutes, as confidential and shall not disclose such information except in reports to the Court served upon both parties to this cause and their counsel, or as directed by the Court. 7....

...The first issue on appeal is whether a guardian ad litem for children of the dissolved marriage has standing to move to set aside a final judgment of dissolution and incorporated settlement agreement. We hold that a guardian ad litem does have such standing in the limited circumstances presented by the facts of this case. Section 61.403, Florida Statutes (1991), provides that guardians ad litem appointed to represent the best interests of *540 children in dissolution actions “shall have the powers, privileges, and responsibilities to the extent necessary to advance...

...in the statute do not include the authority to seek to have the parents’ final judgment of dissolution set aside, they do include filing “such pleadings, motions or petitions for relief as the guardian ad litem deems appropriate or necessary_” § 61.403(6), Pla.Stat....

because his written report was mandatory under section 61.403(5), Florida Statutes (Supp.1994), and, as a

...Palmer’s third and fourth motions to compel payment but he also argues that the trial court erred by not ordering Ms. Palmer to reimburse to him GAL fees and costs and the attorneys’ fees that he previously paid. Both the order appointing Ms. Palmer and section 61.403, Florida Statutes (1997), *452 set forth activities that a GAL may undertake, acting through counsel....

...Thus, while the parties agreed that the report could be considered by the court and not subject to hearsay objections, they also contemplated that the guardian ad litem herself would testify before the court regarding her findings. Section 61.403(5) provides that the guardian ad litem "may address the court and make written or oral recommendations to the court" and "shall file a written report." Section 61.403(5) also contemplates that the report will be presented at a hearing: "The report must be filed and served on all parties at least 20 days prior to the hearing at which it will be presented unless the court waives such time limit." (...

...The crux of the Wife's argument rests on the GAL's failure to provide notice of the interviews she conducted while performing her investigatory duties. While the GAL did fail to provide notice, we conclude that any harm resulting therefrom is curable and could be corrected on appeal. Section 61.403(1), Florida Statutes (2022), provides that a GAL "may investigate the allegations of the pleadings affecting the child, and, after proper notice to interested parties to the litigation and subject to conditions set by the court, may in...

...____________________________, Respondent. MOTION FOR APPOINTMENT OF GUARDIAN AD LITEM ( ) Petitioner ( ) Respondent requests that the Court enter an order appointing a guardian ad litem with all powers, privileges, and responsibilities authorized in section 61.403, Florida Statutes, and states: 1....

...________________________________________________. 3. The guardian ad litem is a party to any judicial proceeding from the date of this order until the date of discharge and shall have all of the powers, privileges, and responsibilities authorized in section 61.403, Florida Statutes, to the extent necessary to advance the best interests of the minor child(ren)....

...he minor child(ren), and after proper notice may interview witnesses or any other person having information concerning the welfare of the minor child(ren). 6. The guardian ad litem shall maintain any information received from any source described in section 61.403(2), Florida Statutes, as confidential and shall not disclose such information except in reports to the Court served upon both parties to this cause and their counsel, or as directed by the Court....

...To prevent such access by the guardian ad litem, Petitioner moved to enjoin the guardian ad litem program, and any individual guardian ad litem assigned, from obtaining any confidential or privileged records pursuant to the initial appointment order without a formal petition and hearing as provided in section 61.403(2), Florida Statutes. Petitioner also sought to modify the form appointment order to exclude from automatic production those records, described in section 61.403(2), for which a petition and hearing would have been required in a chapter 61 dissolution proceeding....

...Boecher, 733 So.2d 993, 999 (Fla.1999). As to whether the trial court departed from the essential requirements of law in denying injunctive or protective order relief, we need not rely upon Petitioner's primary contention that, as a matter of law, section 61.403, Florida Statutes, applies to chapter 39 proceedings, and, if it does, that the guardian ad litem was required by that statute to petition the trial court for an order....

...Both chapter 39 and the Florida Rules of Juvenile Procedure are silent as to the specific power and authority of a guardian ad litem to access records of a minor. Petitioner argues that the juvenile division is a subdivision of the family division and the doctrine of in pari materia compels the conclusion that section 61.403 should apply to a guardian ad litem in dependency proceedings. Section 61.403(2) provides: The guardian ad litem, through counsel, may petition the court for an order directed to a specified person, agency, or organization, including, but not limited to, hospitals, medical doctors, dentists, psychologists, and p...

...copy any records and documents which relate to the minor child or to the child's parents or other custodial persons or household members with whom the child resides. Such order shall be obtained only after notice to all parties and hearing thereon. § 61.403(2), Fla....

...To the contrary, we read subsection (21) as recognizing the minor's right alone. To interpret the statute otherwise would essentially override the privacy interest of the child that is recognized in section 39.4085(2), (3). Additionally, although we do not read section 61.403 in pari materia with chapter 39 such as to authorize a guardian ad litem to obtain confidential psychotherapist/patient records, we note that the supreme court, in deciding whether section 827.04(1)(a), Florida Statutes, which prohibit...

...524, 528 (1938)("Laws should be construed with reference to the constitution and the purpose designed to be accomplished, and in connection with other laws in pari materia, though they contain no reference to each other."). Here, both chapter 39 and section 61.403 have the identical underlying purpose of protecting the interests of minors. As 61.403 is the only statute that speaks to the power of a guardian ad litem to access records of a minor, it is, at the very least, a useful aid in reviewing the scope of a guardian ad litem's authority in chapter 39 proceedings. At a minimum, the principal's right to notice and an opportunity to be heard should be recognized in this situation as it is in section 61.403....

...t must be "compelling," and where a *959 compelling state interest is found, the state must choose the least intrusive or restrictive means of furthering that interest. Id. The legislature undoubtedly has considered much of the foregoing in enacting section 61.403....

...s of obtaining information about the child's treatment. Although, here, we are dealing with a statutory, not a constitutional, privacy issue, there is no reason not to apply the same reasoning, particularly where the minor asserts the application of section 61.403(2)....