In family law practice, the non-custodial parent of a child may petition the court for a change of custody.  To accomplish this, the non-custodial parent must file a Petition for Custody Modification in the court that granted the custody agreement.  In Mississippi, a parent demandng a change in custody must prove that there “has been a material change in circumstances adverse to the best interest of the child”.  Often in these matters, the allegation involves a claim of abuse and neglect perpetrated by the custodial parent against the child.  Thus, the appointment of a Guardian Ad Litem, or GAL is mandated.

Mississippi Code § 93-5-23 provides that: The court may investigate, hear and make a determination in a custody action when a charge of abuse and/or neglect arises in the course of a custody action as provided in Section 43-21-151, and in such cases the court shall appoint a guardian ad litem for the child as provided under Section 43-21-121 , who shall be an attorney.

Mississippi courts have interpreted the “shall” language to insure an appointment in a case where a charge of neglect/abuse is raised. Sanford v. Arinder, 800 So.2d 1267 (Miss.App. 2001);  Foster v. Foster, 788 So.2d 779 (Miss.App. 2000).

The Guardian Ad Litem serves an important function by investigating the claims and defenses of the parties and then making a recommendation to the court.  The Guardian conducts interviews with the minor children, the parents, witnesses, and visits the respective homes of the parents.  Upon completion of their report, the GAL then makes a recommendation to the Judge as to whether custody modification is warranted.  However, the judge is not bound by the recommendation and is under no obligation to accept it.

Regardless of whether the court accepts the recommendation, a GAL report is an important finding that can be used in latter proceedings or an appeal.