Opportunity for Immunity: Kentucky GAL and Quasi-judicial immunity

Introduction[1]

            Whether it is divorced or unmarried parents, custody and parenting time arrangements for children can create tension and lead to high volatility, and even prolonged legal proceedings. The parents of the children can come to an arrangement amicably to be approved by the court, but what about the cases of high tension or an immovable parent? What about parents escalating contentions and dragging out the proceedings over every minute detail? The parents can each have their interests represented, but what about the child? In some circumstances, usually in especially contentious proceedings, a guardian ad litem (GAL) is appointed to represent the best interests of the child.[2] The function of the GAL is vital in these cases, because the GAL's sole task is to look out for the best interests of the child or children.[3] In Kentucky, over the last few years, the Kentucky judicial system addressed and altered the role, duties, and protections of the GAL,[4] but the latest issue is whether a GAL has quasi-judicial immunity.

Although the Kentucky Court of Appeals has addressed quasi-judicial immunity for GAL, the Kentucky Supreme Court has never addressed the issue.[5] If the Kentucky Supreme Court decides to review the issues from Gambrel v. Croushore, the Court should affirm the Kentucky Court of Appeals recognition of quasi-judicial immunity for GAL in custody or parenting time related disputes.[6] GAL serve an important function of the court by representing the best interests of the child, and quasi-judicial immunity for actions within the scope of their duty helps to further those objectives.

Guardians Ad Litem in Custody Disputes

            In custody or parenting time proceedings, GAL duties and obligations differ depending on the jurisdiction. Prior to Morgan v. Getter, Kentucky had a different version of a GAL for representation of the best interest of the child.[7] The GAL would outline their position and findings in a report that was submitted to the court, and were not treated as a party to the action.[8] However, following Morgan, the GAL in custody disputes became a best interest attorney for the child or children they represent.[9] GAL were no longer required to submit reports to the court to avoid the GAL from being needed as a witness to challenge the report.[10] GAL were empowered to put forth a case like the other attorneys representing the parental figures like: filing motions, interviewing parties, actively participating in the trial, etc.[11] Morgan v. Getter cleared up the roles and duties of the GAL, but still left a few questions unanswered including: is the new GAL role covered by quasi-judicial immunity? The Kentucky Court of Appeals finally addressed the question in 2021.[12]

The Gambrel Case

            Lawson, a mother of two who moved to Campbell County, registered an Indiana custody determination with the Campbell Circuit Court and sought an order to be able to move her children to Mississippi.[13] Steve Gambrel was appointed by the court to represent the two children.[14] The court granted Lawson's motion.[15] In 2018, the father sought to modify a custody agreement to make himself primary custodial parent to get the children back to Campbell County with him.[16] Gambrel, still acting as GAL, argued and put forth evidence to the court that it was in the best interest of the children to grant the father's motion.[17] The Campbell Circuit granted the motion.[18] Lawson sought the removal of Gambrel as the GAL, and even alleged malpractice to no avail.[19] Croushore, acting as next friend of the two children, filed an action against Gambrel alleging legal negligence in regard to his duties as GAL.[20] Gambrel filed a motion to dismiss claiming GAL are cloaked by quasi-judicial immunity.[21] The motion was denied, but the Kentucky Court of Appeals took up the case.[22] The Kentucky Court of Appeals had a case of first impression: "whether court-appointed guardians ad litem enjoy absolute quasi-judicial immunity from legal malpractice claims arising from their role" during custody or parenting time cases.[23] The Kentucky Court of Appeals found Gambrel to be covered by quasi-judicial immunity, and granted his motion for dismissal.[24]

Quasi-Judicial Immunity

            If the Kentucky Supreme Court decides to grant appeal to the Gambrel case or to take up the issue in the future, the Court should affirm the quasi-judicial immunity for GAL. The Kentucky Court of Appeals addressed 3 areas as to why the GAL should be covered by quasi-judicial immunity: quasi-judicial duties qualify for quasi-judicial immunity, to try to prevent outside influence from affecting the case put forth by the GAL, and to avoid harassment, through unfounded litigation, of the GAL.[25] One other area not mentioned, but also a vital area to consider is the parental figure's other available avenues for taking action against the GAL.

            Kentucky precedents have established there is an "[a]bsolute immunity against suits for money damages" for judges.[26] This immunity has been extended beyond judges, to "non-judicial officers who perform 'quasi-judicial' duties."[27] A functional approach is applied to determine if the non-judicial officer is performing quasi-judicial duties, and the nature of the function of the non-judicial officer is examined.[28] In this case, the GAL is tasked with determining and acting in the best interest of the child or children they represent.[29] The court noted determining the best interest of the child or children is a "function integral to the judicial system", and the GAL is appointed for the specific purpose.[30] The GAL does not represent the express wishes of any client; the GAL is not guided by the wishes of the children, but is guided only by the primary objective of the court: determining the best interest of the child.[31] The role of the GAL squarely falls under the quasi-judicial duty, and is therefore covered by quasi-judicial immunity.

            Outside influence tainting the decision making process of the GAL is another reason for quasi-judicial immunity.[32] The GAL has the responsibility for putting forth a case arguing for the best interest of the children, and puts forth a case just like the other parties.[33] The parents or parental figures use their lawyers to put forth their version of what they wish to tell the court. The version may be rooted in truth, how they see things, or a version they think the court wants to hear. The GAL has to be able to fight for what is in the best interest of the child, while weighing the potential harm of any decision made against the child. The GAL may have the best evidence and best witnesses, but if the child has to be the star witness in an open court the risk may not be worth it. The children can become the center of the case and any actions by the GAL might be attributed to the child, so the GAL needs to be guided by their strategy and principals alone, not the wants and desires of the parents. Without immunity, the GAL could try to avoid pushing back too hard on the parties to prevent reprisal, cater to the party with the side who has the more retributive nature, or tailor their actions in a way that does not 100% support their duty. All of which would influence the GAL to a strategy outside the best interests of the child.

            The volatility of custody proceedings and the high costs of an adverse outcome make the GAL ripe for hostility from parties who feel they have been wronged. The proceedings involving custody or parenting time come with potentially high stakes for parents or parental figures. Alterations of these living situations can go beyond just the amount of time spent with the child or the particulars of the child's life; it implicates financial matters like potential child support levels. Working with these types of cases has given insight on how a party might be willing to fight tooth and nail for details as small as after school activities, who gets Christmas, when these agreements might take effect, and other small details. Any small detail out of place can make a parent feel slighted, so the potential for "losing" parties to feel the GAL crossed the line is quite significant.

            If either party in the custody dispute has issue with the GAL or the case put forth by the GAL, the party has alternative options to take action against the GAL prior to cessation of the case. The parent, as in the Gambrel case, could petition the judge to remove the GAL.[34] The party can make a motion to the court describing in detail the cause for wanting the GAL removed, and the court can determine whether there is an indication any action is required. On the alternative, if a motion to remove is unsuccessful, the party's lawyer has the chance to challenge the entirety of the GAL's case. The GAL puts forth witnesses, evidence, and arguments to the court, which are all open to challenge and examination by the parties, since the GAL no longer just submits a report. The party has numerous opportunities to discredit any assertions, evidence, or inferences put forth by the GAL to better show their side of the case. Malpractice is not the only way for a parent to take action against the case set forth by the GAL, and therefore the GAL's quasi-judicial immunity does not foreclose alternatives for questioning the case and actions of the GAL.

Conclusion

            Custody proceedings can alter and impact nearly every aspect of a child's living situation including their address, their school, their friends, their extracurricular activities, and even the relationships with both parents. When a GAL is brought in to represent the child, the situation is most likely a contentious one with either one or both parties slowing or aggravating the process. GAL act as an extension of the court to reach the state's ultimate goal: doing what is in the best interest of the child. In order to be able to effectively carry out these duties, the GAL needs to be able to investigate the life of the child, needs to be able to take action, and needs to be able to represent those interests without a constant fear of litigation from the parent who did not get their way. When dealing with high conflict custody cases, generally there is at least one if not both parties who do not get their goal outcome. Allowing the disgruntled parent to pursue the GAL in a malpractice action on behalf of their children does nothing but potentially alter the GAL's tactics in a vigorous pursuit of the best interests of the child. The best interests of the child are served with GAL being shielded by quasi-judicial immunity.

[1] This article is limited to guardian ad litems (GAL) serving the court in custody and parenting time disputes only in Kentucky. This article will not be addressing the other potential areas a GAL might be appointed in.

[2] Ky. Rev. Stat. Ann. § 387.305(5) (West 2022).

[3] Id.

[4] See Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014) (establishing GAL are best interest attorneys representing the children); Gambrel v. Croushore, Ky. App. LEXIS 77 (Ky. Ct. App. 2021) (addressing whether a GAL has quasi-judicial immunity).

[5] Gambrel v. Croushore, Ky. App. LEXIS 77 (Ky. Ct. App. 2021).

[6] Id.

[7] Morgan v. Getter, 441 S.W.3d 94, 118 (Ky. 2014).

[8] Id. at 97.

[9] Id. at 118.

[10] Id.

[11] Id. at 119.

[12] Gambrel v. Croushore, Ky. App. LEXIS 77, at *3 (Ky. Ct. App. 2021).

[13] Id. at *1-2.

[14] Id. at *2.

[15] Id.

[16] Id.

[17] Id. at *3.

[18] Gambrel v. Croushore, Ky. App. LEXIS 77, at *3 (Ky. Ct. App. 2021).

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id. at *4.

[24] Gambrel v. Croushore, Ky. App. LEXIS 77, at *1 (Ky. Ct. App. 2021).

[25] Id. at *4.

[26] Quatkemeyer v. Ky. Bd. Of Med. Licensure, 506 Fed. Appx. 342, 345 (6th Cir. 2012).

[27] Bush v. Rauch, 38 F.3d 842, 847 (6th Cir. 1994).

[28] Gambrel v. Croushore, Ky. App. LEXIS 77, at *4-5 (Ky. Ct. App. 2021).

[29] Ky. Rev. Stat. Ann. § 387.305(5) (West 2022).

[30] Gambrel v. Croushore, Ky. App. LEXIS 77, at *10 (Ky. Ct. App. 2021).

[31] Ky. Rev. Stat. Ann. § 387.305(5) (West 2022).

[32] Gambrel v. Croushore, Ky. App. LEXIS 77, at *11 (Ky. Ct. App. 2021).

[33] Morgan v. Getter, 441 S.W.3d 94, 119 (Ky. 2014).

[34] Gambrel v. Croushore, Ky. App. LEXIS 77, at *3 (Ky. Ct. App. 2021).