331 P.3d 915
N.M.2014Background
- A Rule 1-053.3 guardian ad litem (GAL) was appointed in a highly contentious New Mexico custody dispute to investigate and recommend the children’s best interests.
- Father (W. David Kimbrell) sued Mother and the GAL (Kinzer-Ellington) on behalf of his daughter, alleging various torts arising from the GAL’s conduct during the custody matter.
- The district court dismissed the tort suit, concluding the GAL was appointed as an arm of the court, enjoyed immunity for acts within the appointment’s scope, and the parents lacked standing to sue on the child’s behalf while the appointment stood.
- The Court of Appeals reversed as to standing and applied a functional test to some alleged acts, finding limited immunity; certiorari was granted by the New Mexico Supreme Court.
- The Supreme Court considered (1) whether a Rule 1-053.3 GAL has absolute quasi-judicial immunity for acts within the scope of the appointment, and (2) whether a parent has standing to sue the GAL on behalf of a child during a pending custody proceeding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Rule 1-053.3 GAL is immune from tort suit for acts performed in the course of the appointment | Father: GAL not immune for alleged torts; may have exceeded scope | GAL: absolute quasi-judicial immunity for acts within scope of appointment | GALs appointed under Rule 1-053.3 have absolute quasi-judicial immunity for acts within the scope of their appointment; immunity does not cover acts clearly and completely outside the scope |
| Whether a parent has standing to sue the GAL on behalf of the child during the custody proceeding | Father: parents retain standing to sue child’s GAL | GAL: parent lacks standing because custody appointment limits parent’s ability to act for child and creates conflicts | Parent lacks standing to sue a Rule 1-053.3 GAL on behalf of the child while the GAL appointment remains; custody court should address alleged GAL misconduct and may appoint separate counsel (Rule 1-017(C)) if litigation is warranted |
Key Cases Cited
- Collins ex rel. Collins v. Tabet, 806 P.2d 40 (N.M. 1991) (recognizing absolute immunity for a guardian ad litem acting as an arm of the court and explaining functional analysis when role is unclear)
- Ward v. San Diego County Department of Social Services, 691 F. Supp. 238 (S.D. Cal. 1988) (applying absolute quasi-judicial immunity to a GAL performing investigative and reporting functions for the court)
- State ex rel. Bird v. Weinstock, 864 S.W.2d 376 (Mo. Ct. App. 1993) (holding GAL appointment in custody matters can supersede parental authority and limit parent standing to sue GAL)
- Bluntt v. O’Connor, 291 A.D.2d 106 (N.Y. App. Div. 2002) (holding a parent lacked standing to sue a GAL where suit would interfere with the GAL appointment and create conflicts of interest)