S. Ct. Civ. No. 2013-0050

In custody litigation between the unmarried biological parents of a minor, although the Superior Court erred in invoking 16 V.I.C. § 142(a), an adoption statute, as a basis for appointing an attorney to serve as a guardian ad litem for the child in this proceeding, the error was harmless because-even in the absence of statutory authority-the Superior Court has the common law authority pursuant to its parens patriae power to appoint a guardian ad litem in a custody dispute, to (1) investigate the facts surrounding a case, (2) report those facts to the Superior Court, (3) testify at the hearing before the court, and (4) make a recommendation to the court on the disposition of custody whenever the welfare of the child is at issue. To avoid ambiguity, when appointing a guardian ad litem in a child custody proceeding, the appointing court should clearly specify the terms of the appointment, including the guardian's role, duties, and scope of authority. A court's authority to appoint a guardian ad litem in a custody case ensures that the court will be able to make its decision based on complete, objective information that otherwise may have been unavailable to the court. Such a role is particularly helpful to a court when the parents have demonstrated a pattern of adversarial behavior or when there are concerns about whether all relevant information will be brought to the court's attention. The scope of the appointed attorney's participation as guardian ad litem in the present case was entirely proper. In addition, because both parties had the opportunity to cross-examine the guardian at the custody hearing regarding her written report, the mother was not denied procedural due process. The Superior Court did not abuse its discretion in awarding custody of the minor to the father, because the court properly enumerated the relevant factors and considered the minor's best interests in weighing the evidence. The Superior Court's June 12, 2013 Order is affirmed.