Morgan v. Getter
2014 Ky. LEXIS 439
| Ky. | 2014Background
- Rule 6 of the Family Court Rules of Procedure and Practice allows appointing a guardian ad litem (GAL) in custody-related proceedings, with no statutory definition of the GAL's role.
- In this custody modification case, the trial court appointed a GAL for A.G. to investigate, file a report, and recommend custodial arrangements, while treating the GAL as the child’s representative.
- The court barred Morgan from cross-examining the GAL at the custody hearing, instead allowing cross-examination only of witnesses referred to in the GAL’s report.
- The GAL recommended relocating A.G. to Florida to live with Getter, and the court granted custody modification consistent with that recommendation.
- Morgan appealed, challenging the exclusion of cross-examination; the Court of Appeals affirmed, finding any error harmless, while recognizing concerns about GAL roles.
- Although A.G. turned eighteen before briefing, the Supreme Court granted discretionary review to address the GAL’s proper role; the mootness issue is resolved by public-interest concerns.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether cross-examining the GAL was required | Morgan argues due process requires cross-exam of the GAL. | Getter contends the GAL acted as a court representative, not a witness to be cross-examined. | Cross-examination of the GAL is required; GAL cannot serve as both investigator for the court and attorney for the child. |
| The proper role of the GAL in custody cases | The GAL should be a court investigator/advisor, not an advocate for the child’s wishes. | The GAL may appropriately advocate for the child, including best interests, within proper rules. | GALs must represent the child's best interests, not the child’s stated wishes, in custody cases. |
| Whether the GAL’s dual role was a due process violation | A hybrid GAL/FOC role threatens confidentiality, loyalty, and trial fairness. | Hybrid roles can be efficient and cost-effective in family court. | The hybrid role violated due process; the GAL could not be both investigator for the court and the child’s attorney. |
| Whether the mootness doctrine precludes review or permits it under public-interest | The issue is capable of repetition and of public importance, meriting review despite mootness. | mootness should bar review absent traditional exceptions. | Public-interest exception to mootness applies; the issue is important and likely to recur, justifying review. |
Key Cases Cited
- Benton v. Clay, 238 S.W.1041 (Ky. 1921) (mootness and standing in appeals; general mootness doctrine)
- Choate v. Koorsen Protective Services, Inc., 929 S.W.2d 184 (Ky. 1996) (mootness and exceptions in Kentucky appellate review)
- In re Gault, 387 U.S. 1 (U.S. 1967) (due process and right to counsel for juveniles)
- W.T. Grant Co. v. United States, 345 U.S. 629 (U.S. 1953) (voluntary cessation and mootness exceptions)
- Neidlinger v. Neidlinger, 52 S.W.3d 518 (Ky. 2001) (public-interest exception to mootness; capable of repetition)
- Woods v. Commonwealth, 142 S.W.3d 24 (Ky. 2004) (public-interest factor in mootness; guardian ad litem context)
- Rodney P. v. Stacy B., 169 S.W.3d 834 (Ky. 2005) (public-interest and first-impression questions allowed review)
- Barros v. Barros, 309 Conn. 499 (Conn. 2013) (confronting GALs; cross-examination and best-interest issues)