Section 9.27 Guardian ad Litem

• Library: Family Law Deskbook and 2014 Supp

VIII. (§9.27) Guardian ad Litem

Under §§ 452.423.1 and 452.785.4, RSMo Supp. 2011, the court may appoint a GAL (guardian ad litem) for a child if the court finds that it is in the child’s best interest. This appointment is discretionary because both statutes state the court “may” appoint a GAL for the child.

But § 452.423.2 mandates that “[t]he court shall appoint a guardian ad litem in any proceeding in which child abuse or neglect is alleged.” Mandatory appointment may not be waived by either party. Frazier v. Frazier, 845 S.W.2d 130 (Mo. App. W.D. 1993). Error results if the trial court fails to do so. Gilman v. Gilman, 851 S.W.2d 15 (Mo. App. W.D. 1993). The trial court’s mandatory duty to appoint a GAL when abuse or neglect is alleged arises in all proceedings for child custody, dissolution of marriage, or legal separation. State ex rel. Scott v. Goeke, 864 S.W.2d 411 (Mo. App. E.D. 1993). This duty was distinguished in Goeke, in which the court held that the mandatory appointment of a GAL does not arise under a motion for contempt when child custody is not at issue.

“For purposes of section 452.423, child ‘abuse’ is defined as ‘any physical injury, sexual abuse, or emotional abuse inflicted on a child . . . by those responsible for his care, custody and control, except . . . discipline including spanking, administered in a reasonable manner.’” “Neglect” occurs when those responsible for the proper care, control, and custody of a child fail to provide “the proper . . . medical, surgical, or any other care necessary for [the child’s] well-being.”

In re Marriage of Wood, 262 S.W.3d 267, 271 (Mo. App. S.D. 2008) (citations omitted) (quoting Sewell-Davis v. Franklin, 174 S.W.3d 58, 66 (Mo. App. W.D. 2005), and Rombach v. Rombach, 867 S.W.2d 500, 504 (Mo. banc 1993)).

But see Downard v. Downard, 292 S.W.3d 345 (Mo. App. E.D. 2009), in which the mother’s initial pleadings alleged that the father physically and emotionally abused the children; she later amended her pleadings before trial removing these allegations. On appeal, the father claimed the trial court erred in its failure to appoint a GAL in light of the mother’s allegations. The court held that a parent may not protest the non-appointment of a GAL under § 452.423.2 on the basis that the parent’s interests were harmed when no harm to the child is shown. Id. at 349.

In addition to the mandatory appointment of a GAL when abuse or neglect allegations are pled, a GAL must always be appointed when the...