Section 12.17 Mandatory Appointment When Allegations of Abuse or Neglect

• Library: Family Law Deskbook and 2014 Supp

1. (§12.17) Mandatory Appointment When Allegations of Abuse or Neglect

In a custody proceeding, counsel may want to request
the appointment of a GAL (guardian ad litem). The appointment of a GAL is mandatory, however, in all cases involving allegations of abuse or neglect. See §§ 452.423.2 and 210.160, RSMo Supp. 2011. The mandatory appointment of a GAL in these cases is to protect the best interests of the child and not for the benefit of either party. Bereuter v. Bereuter, 655 S.W.2d 789, 790 (Mo. App. E.D. 1983); Rombach v. Rombach, 867 S.W.2d 500, 502 (Mo. banc 1993). Accordingly, this appointment occurs regardless of whether it is requested by either of the parties. McCormick v. McCormick, 807 S.W.2d 556 (Mo. App. S.D. 1991); Gilman v. Gilman, 851 S.W.2d 15 (Mo. App. W.D. 1993).

Although §§ 452.423.2 and 210.160 clearly require the appointment of a GAL when pleadings allege abuse and neglect, attorneys, and even the courts, may find it difficult to determine if an allegation requires the appointment of a GAL. For example, in Kennedy v. Kennedy, 969 S.W.2d 310 (Mo. App. W.D. 1998), the court concluded that the wife’s request in her petition for dissolution of marriage that the court award the husband supervised or restricted visitation rights did not set forth allegations of abuse and neglect requiring the appointment of a GAL. But in McNeely v. McNeely, 935 S.W.2d 103, 104...