A Zealous Advocate, a Robust Cross: Cross-Examination of Non-Adverse Witnesses by the Guardian ad Litem

Authors

Scott Swain

Abstract

“When the lives and fundamental rights of children are at stake, there must be no silent witnesses.”1 — Carol Bellamy

Systemic pressures in child welfare litigation regularly lead guardian ad litem attorneys to default to the positions and recommendations of state social services. In such cases, witnesses called by the state in trials and evidentiary hearings are non-adverse to the guardian ad litem. This dynamic undermines the purposes of cross-examination rules, threatening the procedural interests of the parties involved. This paper will use a procedural due process balancing test to guide its analysis as it proposes three potential solutions: a shift to client-directed representation, allocating additional funding for the guardian ad litem, and establishing clear evidentiary rules. This paper will argue that the most practical option would be to establish a rebuttable presumption in favor of allowing the guardian ad litem to cross-examine witnesses along with factors to guide in determining when the presumption has been rebutted.

Rights

© 2025 Brigham Young University Law Review

Recommended Citation

Scott Swain, A Zealous Advocate, a Robust Cross: Cross-Examination of Non-Adverse Witnesses by the Guardian ad Litem, 51 BYU L. Rev. 603 (2025).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol51/iss2/11