## Facts

- The parents divorced in 1993 and shared joint legal custody of three minor children; the father had residential custody and the mother had liberal visitation.
- In 1994, the mother petitioned to modify custody, alleging a material change in circumstances tied to the father’s living arrangements for the children.
- A guardian ad litem (GAL) was appointed with the parties’ consent; the appointment was retroactive to reflect earlier participation.
- The GAL investigated the children’s best interests through contacts with the children and adults in their lives and by conducting home visits.
- During the proceedings, the father recorded telephone calls between the mother and the children; the recordings reflected the mother encouraging the children to state a preference to live with her.
- The GAL listened to the recordings, communicated about them with the father’s counsel, and later testified about their contents at the custody-modification hearing while also acting as the children’s advocate.
- The trial court denied the mother’s petition and ordered the mother to pay all GAL fees and costs and all of the father’s attorney fees and costs.

## Issues

1. Whether the trial court abused its discretion by admitting recorded telephone conversations between the mother and the children.
2. Whether the trial court erred by permitting the GAL to testify as a witness while simultaneously serving as an advocate for the children.
3. Whether the trial court abused its discretion by requiring the mother to pay all GAL fees and costs and all of the father’s attorney fees and costs.

## Decision

- The custody-modification decision (leaving residential custody with the father) was affirmed.
- Admission of the recordings through the GAL’s testimony was error, but it was harmless as to the custody determination.
- Allowing the GAL to serve as both advocate and witness on disputed matters was improper, but the error was harmless as to the custody determination.
- The order requiring the mother to pay all GAL and opposing counsel fees and costs was reversed and remanded for reconsideration.

## Legal Principles

- A GAL appointed to represent children’s best interests in custody litigation should not function as a material witness on contested evidence while also acting as an advocate in the same proceeding.
- An evidentiary error in a custody proceeding does not require reversal unless the appellant shows prejudice affecting the custody outcome; harmless error supports affirmance.
- Allocation of GAL fees and attorney fees in domestic relations matters must rest on equitable, record-supported grounds; imposing all such costs on one party as a blanket assessment may be an abuse of discretion.

## Conclusion

The court upheld the denial of the mother’s custody-modification petition because the errors related to the recordings and the GAL’s dual role did not affect the custody result, but it reversed and remanded the blanket fee-and-cost assessment against the mother for equitable reconsideration.


Clark v. Alexander, 953 P.2d 145 (Wyo. 1998)