The Eastern District of the Missouri Court of Appeals decided this week that a trial court does not have the authority under Missouri law to appoint a guardian ad litem to participate in the appeal of a custody dispute or to order parties in custody litigation to pay for the guardian's work on the appeal.
In the case of Brown v. Brown, a father, after losing his custody case, filed a notice of appeal, seeking reversal of an adverse custody decision. The guardian ad litem in the custody case filed a motion asking the trial court to forcethe parties to pay her $5,000 as a deposit because the guardian wanted to draft an appellate brief.
The trial court granted the motion, ordering both parents to pay $2,500 to the guardian ad litem. Before filing an appeal, the father sought a "writ of prohibition" from the Court of Appeals, which is essentially an order of the appellate court preventing a trial court from taking an action. When the appellate court and the Missouri Supreme Court declined to issue the writ, both the mother and father responded by not paying the guardian ad litem. The trial court entered a judgment in favor of the guardian ad litem for her requested fees. Then, the father filed an appeal with the Eastern District challenging the trial court's judgment.
In a case of first impression, the Court determined that Missouri law does not grant a trial court the authority to appoint a guardian ad litem to represent the interests of minor children on appeal of a custody determination nor can the parties be ordered to compensate the guardian for appellate work.
The court correctly noted that the children are not parties in a dissolution case. Therefore, they cannot directly appeal a trial court's decision (only parties, such as mother and father, can do that). In this case, because the guardian ad litem had no statutory authority to participate in the appeal, the trial court had no statutory authority to order anyone to pay for her services.
What this means in the real world is that, at least for purposes of divorce and modification cases where custody is at issue and a guardian ad litem is appointed, the guardian may not directly pursue an appeal or respond to an appeal. Further, a trial court may not order the parties to pay for the guardian's work on appeal. Statutes governing other types of child custody proceedings, such as juvenile proceedings, do provide for the guardian's participation on appeal, and perhaps Missouri law can be amended. However, the court is clear at this time that no such authority exists.