RENDERED: JUNE 25, 2021; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0881-MR

G. KEITH GAMBREL AND THE 

GAMBREL FIRM, LLC APPELLANTS 

v. 

APPEAL FROM CAMPBELL CIRCUIT COURT

HONORABLE JULIE REINHARDT WARD, JUDGE

ACTION NO. 19-CI-00927

PAUL CROUSHORE, IN HIS 

CAPACITY AS NEXT FRIEND OF 

EACH OF SOPHIA VILLARREAL, A 

MINOR AND SPENCER 

VILLARREAL, A MINOR1 APPELLEE 

OPINION

REVERSING AND REMANDING

**   **  **

BEFORE: ACREE, DIXON, AND McNEILL, JUDGES.

ACREE, JUDGE: G. Keith Gambrel appeals the Campbell Circuit Court’s June 

18, 2020 order denying his motion to dismiss a legal malpractice claim against 

 

1

In the notice of appeal, the children’s last name, Villarreal, is incorrectly spelled “Villareal.” 

We will use the correct spelling in this Opinion. An order was entered on June 10, 2021, to 

reflect the correct spelling of the children’s name. 
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him. His motion to dismiss was based on his claim of quasi-judicial immunity for 

actions he took as a court-appointed guardian ad litem (“GAL”). Upon careful 

consideration, we conclude Gambrel was cloaked with absolute quasi-judicial 

immunity and reverse and remand with instructions to dismiss the action. 

BACKGROUND AND PROCEDURE

The genesis of this matter is a custody dispute between Alexandra 

Lawson (“Mother”) and her former husband, Spencer Villarreal (“Father”) relative 

to their two minor children. The family resided in Indiana when a court of that 

state entered the parties’ divorce decree, including the custody determination.

2

Subsequent to the divorce, the parties independently relocated with their children 

to Campbell County, Kentucky. 

In May 2014, Mother registered the Indiana decree and custody 

determination with the Campbell Circuit Court and simultaneously sought an order 

authorizing the relocation of the children to Mississippi. Father opposed the 

motion. Pursuant to FCRPP3 6(2)(e), the court appointed Gambrel as GAL of the 

two children. The circuit court granted Mother’s motion and authorized the 

relocation.

 

2 The parties were awarded joint custody with Mother named as the children’s primary custodial 

parent. 

3 Family Court Rules of Procedure and Practice. 
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In 2018, Father moved to modify the custody agreement. He asked 

the court to re-designate him as the children’s primary custodial parent and for 

return of the children to Campbell County; he alleged Mother failed to act in good 

faith in co-parenting the children. Again, Gambrel served as the court-appointed 

GAL. Gambrel argued that re-designating Father as the primary residential 

custodian and relocating the children to Campbell County was in the children’s 

best interests. (Trial Record “T.R.” at 76). In exercising his statutory duty,

Gambrel filed motions and introduced evidence supporting that position. (T.R. at 

263). He noted that neither child voiced a preference between their parents as 

primary residential custodian. (T.R. at 76). In addition, he presented evidence that 

Mother had not made good decisions regarding the son’s education and that the 

schools in Campbell County would better accommodate his educational needs.4 

The circuit court granted Father’s motion.

Mother filed emergency motions for reinstatement as the children’s

primary residential parent alleging Gambrel committed malpractice. She sought 

Gambrel’s removal as GAL. The motions were denied. (T.R. at 146-47).

Paul Croushore, in his capacity as next friend of the Villarreal

children, filed this action against Gambrel claiming he committed legal negligence 

 

4 The son has dyslexia, dysgraphia, and attention deficit hyperactivity disorder. (T.R. at 73).
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in the way he performed his duties as GAL.5 In response, Gambrel filed a motion 

pursuant to CR6 12.02(f) to dismiss the case for failure to state a claim upon which 

relief may be granted, asserting he was cloaked with absolute quasi-judicial 

immunity. The circuit court denied the motion. “[A]n order denying a substantial 

claim of absolute immunity is immediately appealable even in the absence of a 

final judgment.” Maggard v. Kinney, 576 S.W.3d 559, 564 (Ky. 2019) (internal 

quotation marks and citation omitted). Gambrel then brought this appeal.

STANDARD OF REVIEW

“[A] court should not grant . . . a motion [to dismiss for failure to state 

a claim] ‘unless it appears the pleading party would not be entitled to relief under 

any set of facts which could be proved . . . .’” Fox v. Grayson, 317 S.W.3d 1, 7 

(Ky. 2010) (quoting Pari-Mutuel Clerks’ Union of Kentucky, Local 541, SEIU,

AFL-CIO v. Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky. 1977)). Such a 

motion “admits as true the material facts of the complaint.” Id. (quoting Upchurch 

 

5 The complaint alleged Gambrel failed to exercise the requisite degree of care and skill by: (1)

failing to advise the children concerning his role in the custody proceedings; (2) failing to inform 

the children concerning all significant developments during the course of the proceedings; (3) 

failing to advise the children concerning material options they had in the custody proceedings 

and their legal ramifications; (4) failing to advocate to the circuit court the wishes of the 

children; (5) making decisions for what he thought was in the best interest of the children rather 

than what they wanted, without disclosing or discussing with the children the differences in 

opinions; (6) failing to seek instruction from each child on matters as to which each of them has 

the right to determine the goals and objectives of Gambrel’s representation of them; and (7) by 

confusing his role as GAL with that of a friend of the court. 

6 Kentucky Rules of Civil Procedure. 
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v. Clinton County, 330 S.W.2d 428, 429-30 (Ky. 1959)). Immunity is purely a 

question of law and our review is de novo. Lawrence v. Bingham, Greenebaum,

Doll, L.L.P., 567 S.W.3d 133, 137 (Ky. 2018), reh’g denied (Mar. 14, 2019).

ANALYSIS

This case presents an issue of first impression in Kentucky: whether 

court-appointed guardians ad litem enjoy absolute quasi-judicial immunity from 

legal malpractice claims arising from their role in child custody proceedings. 

Based on applicable Kentucky law and public policy, we conclude they do.

“Absolute immunity against suits for money damages is ‘well 

established’ for judges, and such immunity has also been extended to non-judicial 

officers performing ‘quasi-judicial’ duties.” Sangster v. Kentucky Bd. of Med.

Licensure, 454 S.W.3d 854, 858 (Ky. App. 2014) (citations omitted). Kentucky 

extends quasi-judicial immunity “to those persons performing tasks so integral or 

intertwined with the judicial process that these persons are considered an arm of 

the judicial officer who is immune.” Id.; see also Stone v. Glass, 35 S.W.3d 827, 

829 (Ky. App. 2000). To determine quasi-judicial immunity, we apply a 

“functional approach” and “‘look[ ] to’ the nature of the function performed, not 

the identity of the actor who performed it.” Sangster, 454 S.W.3d at 858-59 

(citation omitted). This doctrine applies to court officers when working within the 

scope of the court’s appointment. See Horn by Horn v. Commonwealth, 916 
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S.W.2d 173, 176 (Ky. 1995) (“[Q]uasi-judicial immunity attaches to the CDW 

when working within her capacity as a court designated worker.”).

The circuit court, in denying Gambrel his claimed immunity, relied on 

our Supreme Court’s decision in Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014). 

However, Morgan says nothing directly relating to the question of immunity, 

whether that immunity applies to a GAL, a “friend of the court,” or any other 

court-appointed officer or investigator. 

Although Morgan distinguished the role of a GAL in custody 

proceedings from that of “court investigators,” it decided only whether due process 

requires a court to permit a litigant to cross-examine a court-appointed officer who 

submits a report to the court. Id. at 112 (“parties’ right to due process includes the 

right to cross-examine the authors, including so-called GALs, of evidentiary 

reports upon which the fact finder is entitled to rely”). In that context, the Court 

concluded a friend of the court is “a child’s representative appointed as an officer 

of the court to investigate the child’s and the parents’ situations, to file a report 

summarizing his or her findings, and to make recommendations as to the outcome 

of the proceeding[.]” Id. at 111. By contrast, a GAL is “a child’s representative 

appointed to participate actively as legal counsel for the child, to make opening 

and closing statements, to call and to cross-examine witnesses, to make evidentiary 

objections and other motions, and to further the child’s interest in expeditious, non-
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acrimonious proceedings[.]” Id. The lesson of Morgan for bench and bar is that, 

to avoid implicating the due process right of cross-examination, a GAL “should not

file reports, testify, make recommendations, or otherwise put his own or her own 

credibility at issue.” Id. at 114 (emphasis original).

Extrapolating Morgan, the circuit court in the instant case concluded

as follows:

Here, the Defendant, Gambrel, was appointed and clearly 

served as legal counsel to the children rather than serving 

as a friend of the court investigator. Gambrel served as an 

advocate for the best interest of the children by filing 

motions and introducing evidence on behalf of his clients, 

whereas the Family Court judge served as the fact-finder 

and decided the law that governed those facts. Moreover, 

the acts by Gambrel on which the children base their 

claims of malpractice involved no non-discretionary 

functions performed at the direction of a judicial officer.

Discretionary actions are those that involve personal 

deliberation, decisions, and judgment, and the role of 

counseling a client on the law and the client’s rights 

clearly involves the exercise of discretion. Jacobi v. 

Holbert, 553 S.W.3d 246, 262 (Ky. 2018). The Defendant 

was appointed to provide legal counsel for and to advocate 

on behalf of the children. Thus, Gambrel’s role was vastly 

different from that of the Family Court judge and did not 

involve discretionary acts or conduct like those a judge 

performs.

. . . .

. . . Morgan . . . makes clear that the role of a GAL is to 

serve as legal counsel for the children and to advocate for 

their best interests. Therefore, the Court finds that the 

Defendants do not qualify for quasi-judicial, nor any other 

form of immunity.
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(T.R. at 263-64). We find that the circuit court erred when it concluded a GAL 

whose duty it is to advocate for the children’s best interests is, ergo, disqualified 

from claiming quasi-judicial immunity.

Morgan is not dispositive of the immunity issue. The question is not 

whether Gambrel could have been cross-examined despite not filing any report 

with the family court. Gambrel’s appeal requires this Court to answer a different 

question – whether he is immune from suit, a question ultimately answered by 

considerations of public policy, not the same principles of due process that guided 

the Supreme Court in Morgan. 

We acknowledge that Morgan distinguishes the roles of GALs and 

court investigators. However, these distinctions do little to answer the immunity 

question. In other words, there is no justification for denying immunity to a courtappointed GAL simply because Morgan says the GAL cannot be cross-examined. 

After all, neither role – GAL nor “friend of the court” – requires advancing the 

desires or following directives of children who are the subjects of the legal dispute. 

Cases addressing quasi-judicial immunity in other contexts are more 

helpful than Morgan. For example, cases finding immunity for prosecutors are 

based on the same fundamental reasoning as must be applied here. A prosecutor

does not act as an investigator for the court, does not report a recommendation of 

guilt or innocence, and does not engage in fact-finding for the judge. A prosecutor 
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is an advocate for the Commonwealth, performing a function independent from, 

yet integral to, the judicial system. And, “so long as a prosecutor acts within the 

scope of the duties imposed by law, quasi-judicial immunity is available[.]” 

McCollum v. Garrett, 880 S.W.2d 530, 534 (Ky. 1994).

Like prosecutors, court-appointed GALs have duties that are imposed 

by law:

Whether appointed pursuant to this statute or pursuant to a 

provision of the Kentucky Unified Juvenile Code, the 

duties of a guardian ad litem shall be to advocate for the 

client’s best interest in the proceeding through which the 

guardian ad litem was appointed. Without an appointment, 

the guardian ad litem shall have no obligation to initiate 

action or to defend the client in other proceedings.

KRS 387.305(5). 

Though the circuit court found the GAL’s and judge’s roles “vastly 

different,” we see a more fundamental distinction between the GAL’s advocacy 

role and that of the parents’ lawyers. The latter “shall abide by a client’s decisions 

concerning the objectives of representation . . . .” SCR7 3.130(1.2)(a). The GAL 

has no duty to advocate for the children’s wishes; i.e., to abide by their decisions 

concerning the objectives of the GAL’s representation. Morgan, 441 S.W.3d at 

118. The objective of the GAL’s representation is to protect the children from any 

outcome which, in the estimation of the GAL, is inconsistent with the children’s 

 

7 Rules of the Kentucky Supreme Court.
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best interests. In this way, the GAL’s function and the function of the family court 

are identical and not “vastly different” at all. Long ago, Kentucky’s highest court 

“established the best interests of the child as the ultimate goal to be achieved” in 

custody cases. McCormick v. Lewis, 328 S.W.2d 415, 416 (Ky. 1959). 

Determining the best interests of children is a function integral to the judicial 

system, and a court appoints a GAL for the very purpose, often the sole purpose, of 

assisting in that function. 

The circuit court itself held that the instant “claims of malpractice 

involved no non-discretionary functions” by the GAL. Certainly, quasi-judicial 

immunity “applies to officials other than judges” when the court-appointed official 

performs “a function requir[ing] exercise of discretionary judgment.” Sangster, 

454 S.W.3d at 859. Here, the GAL was sued because of his exercise of 

discretionary judgment and compliance with KRS8 387.305(5).

Thus far, we focused on statutory and common law that points the 

Court in the direction of finding immunity applies here. As noted, however, this is 

a question of public policy. And, just as sound public policy compels the 

availability of immunity for prosecutors, public policy compels the conclusion that 

GALs should be cloaked in absolute quasi-judicial immunity, too. 

The common-law immunity of a prosecutor is based upon 

the same considerations that underlie the common-law 

 

8 Kentucky Revised Statutes.
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immunities of judges and grand jurors acting within the 

scope of their duties. These include concern that 

harassment by unfounded litigation would cause a 

deflection of the prosecutor’s energies from his public 

duties, and the possibility that he would shade his 

decisions instead of exercising the independence of 

judgment required by his public trust.

Imbler v. Pachtman, 424 U.S. 409, 422-23, 96 S. Ct. 984, 991, 47 L. Ed. 2d 128

(1976) (footnotes omitted).

The risk of “harassment by unfounded litigation” is no less for a GAL

than for a prosecutor. In turn, without immunity, there is the same possibility that, 

to avoid the risk of being sued, the GAL will “shade his decisions.” These risks 

have been public policy considerations of courts across the country when 

considering how they affect the performance of GALs. 

After surveying the nations’ federal and state courts, the New York 

Supreme Court, Appellate Division, said: “Most courts that have considered suits 

by disgruntled parents against attorneys appointed by courts to protect children in 

custody disputes have granted, on public policy grounds, absolute quasi-judicial 

immunity to the attorneys for actions taken within the scope of their 

appointments[.]” Bluntt v. O’Connor, 291 A.D.2d 106, 116, 737 N.Y.S.2d 471 

(N.Y. App. Div. 2002)9; see also LINDA D. ELROD, CHILD CUSTODY PRACTICE AND 

 

9 The New York court, Bluntt, 737 N.Y.S.2d at 478-79, cited the following cases: Cok v. 

Cosentino, 876 F.2d 1, 3 (1st Cir. 1989); Myers v. Morris, 810 F.2d 1437, 1466 (8th Cir. 1987), 

cert. denied, 484 U.S. 828, 108 S. Ct. 97, 98 L. Ed. 2d 58 (1987), abrogated on other grounds by
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PROCEDURE, IMMUNITY § 12.11 (2021) (“Absolute immunity [is] necessary to 

avoid harassment and intimidation that could bear on the guardian ad litem’s 

impartiality . . . .”). 

Even when the expansion of quasi-judicial immunity to non-judges is 

criticized, its universal application to GALs in all jurisdictions is stated as a matter 

of fact, without further comment. The following is an example:

For the six circuits with published decisions, the courts 

have unanimously held that GALs are entitled to absolute 

judicial immunity for activities within the scope of their 

appointment. Specifically, the First, Third, Fourth, Sixth, 

Seventh, and Ninth Circuits have all reached this 

conclusion. In addition, district-court decisions and statecourt decisions in the Second, Fifth, Eighth, Tenth, 

Eleventh, and District of Columbia circuits are in accord.

 

Burns v. Reed, 500 U.S. 478, 111 S. Ct. 1934, 114 L. Ed. 2d 547 (1991); Kurzawa v. Mueller, 

732 F.2d 1456, 1458 (6th Cir. 1984); Perigo v. Wiseman, 11 P.3d 217, 217-18 (Okla. 2000); 

Paige K.B. by Peterson v. Molepske, 219 Wis. 2d 418, 427, 580 N.W.2d 289, 293 (1998); Billups 

v. Scott, 253 Neb. 287, 293, 571 N.W.2d 603, 607 (1997); West v. Osborne, 108 Wash. App. 

764, 774, 34 P.3d 816, 822 (2001); Winchester v. Little, 996 S.W.2d 818, 827 (Tenn. Ct. App. 

1998), cert. denied, 528 U.S. 1026, 120 S. Ct. 543, 145 L. Ed. 2d 421 (1999); Delcourt v. 

Silverman, 919 S.W.2d 777, 786 (Tex. App. 1996), cert. denied, 520 U.S. 1213, 117 S. Ct. 1698, 

137 L. Ed. 2d 824 (1997), reh’g denied, 520 U.S. 1283, 117 S. Ct. 2472, 138 L. Ed. 2d 227 

(1997); State ex rel. Bird v. Weinstock, 864 S.W.2d 376, 377-378 (Mo. Ct. App. 1993); Leary v. 

Leary, 97 Md. App. 26, 40, 627 A.2d 30, 36 (1993); Penn v. McMonagle, 60 Ohio. App. 3d 149, 

152, 573 N.E.2d 1234, 1237 (1990), jurisdictional mot. overruled, 58 Ohio St. 3d 704, 569 

N.E.2d 512 (1991); Delbridge v. Office of Pub. Defender, 238 N.J. Super. 288, 299-300, 569 

A.2d 854, 860 (1989), aff’d sub nom. A.D. v. Franco, 297 N.J. Super. 1, 687 A.2d 748 (1993), 

certification denied, 135 N.J. 467, 640 A.2d 849 (1994), cert. denied sub nom. Delbridge v. 

Franco, 513 U.S. 832, 115 S. Ct. 108, 130 L. Ed. 2d 56 (1994); cf. Fleming v. Asbill, 42 F.3d 

886, 890 (4th Cir. 1994).
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Margaret Z. Johns, A Black Robe Is Not A Big Tent: The Improper Expansion of 

Absolute Judicial Immunity to Non-Judges in Civil-Rights Cases, 59 SMU L. REV.

265, 283-84 (2006) (footnotes citing opinions in each jurisdiction omitted).

We find no merit in Appellee’s argument for distinguishing this case 

from the nationwide unanimity of jurisprudence on this subject. That distinction, 

says the Appellee, is that “[t]he Villarreal Children decided to bring an action” 

rather than any disgruntled parent as in all the other cases cited herein. We need 

not undertake a review of every case to confirm that premise. It is a false one. The 

fiction or fact that the children, notwithstanding their lack of legal capacity, made 

such a decision is irrelevant. If a GAL is entitled to immunity, it does not matter 

who seeks to establish his liability. 

A GAL has the same overarching statutory duty in child custody 

proceedings as a judge – to ensure the best interests of the child are met. GALs are 

appointed by court order at the behest of the presiding judge or a party. This 

appointment furthers the judge’s duty to determine the best interests of the children 

by ensuring the court is presented with unbiased evidence in support of those 

interests, not merely the biased advocacy of the parents.

The same reasoning underlying a judge’s entitlement to absolute 

immunity compels us to extend similar protection to GALs appointed by the court 

to represent the best interests of children affected by custody disputes. If GALs are 
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harassed by a disgruntled parent (or by a next friend of that parent’s legally 

incompetent minions, their children), or if they even fear the potential of such 

litigation, their efforts to advance the children’s best interests would always be 

suspect. See Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir. 1984);

10 Arsan v.

Keller, 784 F. App’x 900, 908 (6th Cir. 2019).

11

 Accordingly, having considered 

the nature of their function, we conclude GALs perform tasks integral to the 

judicial process – ensuring the best interests of the child are met – and public 

policy dictates they should be protected by quasi-judicial immunity. 

Finally, we note that there are protections in place against a GAL who 

fails to diligently and impartially carry out his assigned judicial function. Because 

a GAL must be a member of the bar, he will be held to the rules of professional 

 

10 A GAL “must act in the best interests of the child he represents. Such a position clearly places 

him squarely within the judicial process to accomplish that goal. A guardian ad litem must also 

be able to function without the worry of possible later harassment and intimidation from 

dissatisfied parents. Consequently, a grant of absolute immunity would be appropriate. A 

failure to grant immunity would hamper the duties of a guardian ad litem in his role as advocate 

for the child in judicial proceedings.” Kurzawa, 732 F.2d at 1458.

11 In Arsan v. Keller, 784 F. App’x at 908, the Sixth Circuit held:

Absolute immunity protects judges from liability for acts performed in their judicial 

capacity. See Cleavinger v. Saxner, 474 U.S. 193, 199, 106 S. Ct. 496, 88 L. Ed. 2d 

507 (1985). The Supreme Court has extended this defense — sometimes called 

“quasi-judicial immunity” — to others “who perform functions closely associated 

with the judicial process.” Id. at 200, 106 S. Ct. 496. Guardians ad litem are 

entitled to such immunity when they act within the scope of their roles as 

“advocate[s] for the child in judicial proceedings.” Kurzawa, 732 F.2d at 1458.

This is because guardians ad litem “must also be able to function without the worry 

of possible later harassment and intimidation from dissatisfied parents.” Id. As 

such, “failure to grant immunity would hamper the duties of a guardian ad litem in 

his role as advocate for the child in judicial proceedings.” 
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conduct except where his conduct is governed by statute rather than rule. Contrast

KRS 387.305 with SCR 3.130(1.2). Next, the GAL is not the final word; 

ultimately, the court must make the best interests determination and that 

determination need not be in lock-step with the GAL’s view. Lastly, the court 

oversees the GAL’s conduct and may withdraw the appointment sua sponte or 

upon a parent’s motion. Such a motion was filed in the underlying action, but it 

was denied.

CONCLUSION

Based on the foregoing, we reverse the Campbell Circuit Court’s June 

18, 2020 order denying Gambrel’s motion to dismiss and remand with orders to 

dismiss the case for failure to state a claim upon which relief may be granted. 

ALL CONCUR.

BRIEFS FOR APPELLANT:

Joseph W. Borchelt

Matthew A. Taulbee

Ft. Mitchell, Kentucky

ORAL ARGUMENT FOR 

APPELLANT:

Joseph W. Borchelt

Ft. Mitchell, Kentucky

BRIEF AND ORAL ARGUMENT 

FOR APPELLEE:

John J. Mueller

Cincinnati, Ohio