Question: When my wife and I divorced three years ago, I agreed that she have custody of our two sons, 5 and 9. In order to try to not disrupt their lives, I also agreed that she have the use of our home until our sons became 18. I have now learned that my wife is having another man spend the night at my home and believe that she is not caring for the boys. I am thinking about suing her the change custody, and have been doing research on the Internet before hiring a lawyer. This brought me to your Website and my question. When we divorced, our children were not represented by a guardian or a lawyer. Will the court appoint one now? And if so, what will this person do and how much will it cost? Will the guardian's recommendations be rubberstamped by the judge?

Answer: Since the primary consideration in all child custody proceedings is the overall best interests of the child, the family court will be required to go on a "fact finding" mission to determine how its decision will affect the physical, psychological, spiritual, educational, and emotional aspects of a child's life. As part and parcel of its decision, the Court will consider each parent's character and morals. In order to change custody, the Court must be satisfied by the evidence presented that there has been a substantial change of circumstances since the initial custody order was issued which affect the child's overall best interests and welfare.

In assuring that each child's best interests are served, the Court may decide to appoint a guardian ad litem who is a legal representative for the children for the purposes of the litigation who will protect the interests of children who are legally "incompetent.". Generally, if appointed, a guardian ad litem's duties end with the issuance of a final order of custody. The guardian ad litem may be a lawyer, a social worker, or any other qualified independent person the Court determines will protect the child's interests. After being appointed, the guardian ad litem will act as an independent advocate for the children and will meet with parents and witnesses, review the facts and evidence, and make recommendations to the Court. The guardian ad litem has the power to subpoena witnesses and evidence and to cross examine witnesses. The recommendations of the guardian ad litem are advisory, not mandatory, as the Court will make the final decision based upon the totality of evidence.

The order appointing the guardian ad litem should establish the duties and responsibilities of the individual and the manner of payment. Some judges require that the guardian ad litem be paid a retainer, while others allow him or her to bill during the proceedings. To assure independence, many courts will assess the fees equally between the parents and then, at the end of the case, may allocate the fees differently. The hourly rates will depend on where you live and the qualifications of the guardian ad litem.

Practically, however, many courts choose to follow the recommendations of the guardian ad litem unless the judge is convinced that the facts or the children's interests are other than have been reported. The appointment of a guardian ad litem adds another dimension to a custody proceeding that potential litigants should consider from a cost standpoint because, in addition to paying lawyers to represent you and your wife, each of you will probably assessed with a part of the guardian ad litem's fees. For more about guardians ad litem, you can go to the Website of the American Academy of Matrimonial Lawyers at www.aaml.org.