Ward v. Fisher: Tenth Circuit Persuasively Affirms Quasi‑Judicial Immunity for Court‑Appointed Custody Evaluators and Guardians ad Litem; Legal Malpractice in Oklahoma Sounds in Tort Absent Specific Contractual Promises

Introduction

In Ward v. Fisher, No. 24-5083 (10th Cir. Apr. 1, 2025) (unpublished), the Tenth Circuit affirmed the dismissal of federal and state law claims brought by a father against a court‑appointed guardian ad litem (GAL), a court‑appointed child custody evaluator, and his former attorney, all arising from a contentious Oklahoma paternity and custody proceeding. The panel held that the GAL and the custody evaluator were entitled to quasi‑judicial immunity for actions within the core scope of their court‑appointed duties. Separately, the court held the plaintiff’s professional‑malpractice‑by‑contract claim against his former attorney was time‑barred because the engagement letter did not “spell out” specific performance obligations sufficient to convert a tort malpractice claim into a contract claim under Oklahoma law.

Though designated as a nonprecedential order and judgment, the opinion is significant for two reasons. First, it provides a persuasive and clear statement in the Tenth Circuit that quasi‑judicial immunity extends not only to GALs (already recognized in Tenth Circuit precedent) but also to court‑appointed custody evaluators, aligning with other circuits. Second, it reinforces Oklahoma’s Dabney rule on professional malpractice: absent specific contractual promises of performance, attempts to repackage malpractice as contract to obtain a longer limitations period will fail.

Case Background

The dispute arises from a 2016–2017 Oklahoma state paternity and custody action in which appellant Denver Ward sought to protect the parties’ minor child, H.A.B., from what he alleged was medical child abuse by the child’s mother, Debra Billingsly. The state court appointed:

Carol L. Swenson as guardian ad litem (GAL) for H.A.B.; and
Dr. Laura Fisher, a licensed psychologist, as a child custody evaluator.

Dr. Fisher performed an initial evaluation in November 2016, noting concerns about the child’s medical history but lacking medical substantiation. After Dr. Mary Ellen Stockett (a pediatric child-abuse specialist) reviewed the records and reported abuse, the Oklahoma Department of Human Services substantiated abuse in April 2017. Dr. Fisher, after reviewing Dr. Stockett’s report and consulting another expert, concluded the child faced potential irreparable harm in the mother’s custody. With an affidavit from the GAL supporting emergency relief, Mr. Ward obtained custody in June 2017, and the mother’s visitation was limited to professional supervision.

Several years later, Mr. Ward sued three individuals:

Dr. Fisher (custody evaluator);
Ms. Swenson (GAL); and
Attorney Brad Grundy (Ward’s former counsel early in the paternity case).

He alleged breach of contract (Count I) and negligence (Count II) against all three for failing to act promptly or competently to protect H.A.B. He also alleged that Dr. Fisher and Ms. Swenson, “acting under cover of state law,” violated the Eighth and/or Fourteenth Amendments (Count III) by obstructing emergency intervention and disregarding known risks. He sought punitive damages (Count IV). The case was removed to federal court and dismissed on the grounds that (1) the GAL and custody evaluator were entitled to quasi‑judicial immunity, and (2) the claims against Mr. Grundy were time‑barred.

Summary of the Opinion

The Tenth Circuit affirmed the district court in full:

Quasi‑judicial immunity: Both the GAL (Swenson) and the court‑appointed custody evaluator (Fisher) were entitled to absolute quasi‑judicial immunity for actions taken within the core duties of their appointments to assist the court in the custody proceedings. Allegations that they acted improperly, with bias, or for self‑interest do not defeat immunity absent action taken “in the clear absence of all jurisdiction.”
Attorney time bar: Mr. Ward’s negligence claim against his former attorney (Grundy) was conceded to be untimely. The breach‑of‑contract claim was also time‑barred because the attorney’s engagement letter did not specify performance obligations independent of the general standard of professional care; consequently, the claim sounded in tort and was subject to Oklahoma’s two‑year limitations period for legal malpractice.
Section 1983 state action: Because Dr. Fisher was entitled to quasi‑judicial immunity, the panel did not reach whether she was a “state actor” for purposes of Mr. Ward’s § 1983 claims. The immunity ruling mooted that question.

Analysis

Precedents Cited and Their Role

Stump v. Sparkman, 435 U.S. 349 (1978): The Supreme Court’s bedrock articulation of judicial immunity—absolute immunity shields judicial acts even if done in error, maliciously, or in excess of authority, unless taken in the “clear absence of all jurisdiction.” The Tenth Circuit imports this standard to quasi‑judicial actors.
Cleavinger v. Saxner, 474 U.S. 193 (1985): Explains extending absolute immunity to non‑judges who perform functions closely associated with the judicial process. This case undergirds the doctrine’s logic applied beyond judges.
Dahl v. Charles F. Dahl, M.D., P.C. Defined Benefit Pension Trust, 744 F.3d 623 (10th Cir. 2014): The Tenth Circuit recognized quasi‑judicial immunity for guardians ad litem. Ward relies on Dahl to conclude a GAL’s actions within core duties assisting the court are immune.
Hughes v. Long, 242 F.3d 121 (3d Cir. 2001): Recognizes quasi‑judicial immunity for court‑appointed custody evaluators. While not binding in the Tenth Circuit, Ward cites Hughes to extend the same rationale to evaluators. The panel’s reliance signals alignment with a broader consensus that such evaluators are performing a function integral to the judicial process.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009): Standard for plausibility on a motion to dismiss under Rule 12(b)(6); the court applies these to assess whether allegations, taken as true, can surmount immunity or limitations defenses.
Sierra Club v. Oklahoma Gas & Electric Co., 816 F.3d 666 (10th Cir. 2016): Confirms that a statute of limitations defense can be resolved on a Rule 12(b)(6) motion if the complaint’s dates show the claim is time‑barred.
Great Plains Federal Savings & Loan Ass’n v. Dabney, 846 P.2d 1088 (Okla. 1993): The seminal Oklahoma case distinguishing professional‑malpractice claims sounding in contract versus tort. A contract claim exists only where the contract “spells out” the promised performance independent of general professional standards; otherwise, the claim is a tort governed by the tort limitations period.
Funnell v. Jones, 737 P.2d 105 (Okla. 1985): Establishes the two‑year statute of limitations for legal malpractice in Oklahoma.
Teigen v. Renfrow, 511 F.3d 1072 (10th Cir. 2007): Sets the standard of review for Rule 12(b)(6) dismissals, which the panel applies de novo.

Legal Reasoning

1) Quasi‑Judicial Immunity for GALs and Custody Evaluators

The court situates GALs and custody evaluators within the category of non‑judge participants who perform functions “closely associated with the judicial process,” thus meriting absolute immunity for acts within their core duties. The stated purposes underpinning the doctrine are especially salient in family‑court matters: these officers must exercise judgment, often under intense pressure and in emotionally charged facts, to assist the court. The law protects that independent judgment by insulating them from subsequent tort suits by unhappy litigants.

Applying the doctrine, the panel noted:

Both Swenson and Fisher were formally appointed by the state court to aid resolution of the custody dispute.
All alleged misconduct arose from actions that fall within their core responsibilities—investigating, evaluating, and reporting to the court regarding the child’s best interests and safety.
Allegations that they advocated for the mother at times, ignored cues, or delayed matters for personal gain—even if assumed true—are not enough to overcome absolute immunity. Under Stump, errors, malice, or exceeding authority do not pierce immunity; only action in the clear absence of jurisdiction does.

The court emphasized the “clear absence of all jurisdiction” standard. It rejected the notion that alleged bad faith, bias, or ill‑motivated delay removes immunity. The complaint did not allege that the GAL or evaluator acted outside the scope of the court’s appointment or without any judicial authorization—for example, by undertaking actions unrelated to the case or beyond the role the court conferred. Because all allegations sounded in how they fulfilled (or failed to fulfill) their appointed roles, immunity applied.

Having resolved the case on immunity grounds, the court explicitly declined to address whether Dr. Fisher was a “state actor” under § 1983—a necessary element for constitutional claims—because the immunity determination was dispositive.

2) Oklahoma’s Contract vs. Tort Framework for Legal Malpractice

Mr. Ward sought to proceed against his former attorney, Mr. Grundy, on both negligence and “breach of contract” theories. He conceded the negligence claim was time‑barred. He argued the contract claim should benefit from a longer (five‑year) limitations period because the engagement letter constituted a contract specifying performance.

The Tenth Circuit rejected this argument under Oklahoma’s Dabney framework:

A professional malpractice claim may be framed in both tort and contract only when the contract “spells out the performance” the defendant promises to undertake, independent of the general professional standard of care. In other words, the agreement must contain specific, bargained‑for undertakings beyond “I will provide legal representation.”
If the agreement merely restates the ordinary duty of skill and care an attorney owes as a matter of law, or describes generally the subject of representation, the claim sounds in tort and is governed by the two‑year limitations period. See Funnell.

Here, the engagement letter said Mr. Grundy would “represent [Mr. Ward] in connection with [his] paternity action with [Ms.] Billingsly.” The court held this was purely descriptive of the scope of representation, not a specific promise to perform particular tasks (e.g., to file an emergency application by a date certain, to consult identified experts, or to deliver certain litigation steps). Consequently, Mr. Ward could not recharacterize malpractice as contract to obtain a longer statute of limitations, and the claim was time‑barred.

Impact and Implications

A) Family‑Law Litigation in the Tenth Circuit

The opinion contributes persuasively to the developing law in the Tenth Circuit that court‑appointed custody evaluators—alongside GALs—enjoy absolute quasi‑judicial immunity for acts within their court‑assigned functions. For litigants:

Suits against GALs and evaluators based on how they investigated, reported, recommended, or otherwise assisted the court are likely to be dismissed at the pleading stage unless the plaintiff can plausibly allege conduct taken in the “clear absence of all jurisdiction” or outside the scope of the appointment.
Allegations of bias, negligence, delay, or even malice, without more, do not pierce immunity. The remedy for perceived errors by these actors generally lies within the ongoing state proceedings (e.g., motions to strike, to appoint a different evaluator, to limit or exclude testimony), appellate review, or professional/licensing complaints—not collateral tort or § 1983 actions.
Section 1983 claims against court‑appointed evaluators or GALs will often be screened out on immunity grounds before any “state actor” inquiry is reached.

Importantly, while this order is nonprecedential, district courts within the Tenth Circuit may cite it for its persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Combined with Dahl and out‑of‑circuit authority such as Hughes, the doctrinal trajectory is clear: the judiciary is strongly protective of court‑appointed child‑welfare officers.

B) Drafting and Litigating Attorney Engagement Agreements in Oklahoma

Ward reinforces a practical lesson from Dabney for clients and counsel:

If a client wishes to preserve a contract claim with a longer limitations period, the engagement agreement must “spell out” specific performance obligations—concrete commitments independent of the general standard of care. Examples might include commitments to:
- pursue a specified motion or application by a date certain;
- retain a particular type of expert by a defined milestone;
- file or refrain from filing certain pleadings under defined conditions;
- provide enumerated deliverables on a schedule.
Absent such specificity, claims will sound in tort and be limited to Oklahoma’s two‑year malpractice statute of limitations.
Plaintiffs cannot safely rely on serial filings and dismissals to save untimely malpractice claims. As in Ward, prior voluntary dismissals did not revive or extend the limitations period for a later‑filed action where the underlying claim sounded in tort.

C) Procedural Posture and Early Disposition

The panel underscores that both immunity and statute‑of‑limitations defenses are appropriately resolved at the Rule 12(b)(6) stage when the complaint’s allegations and dates make the defenses clear. This affects litigation strategy:

Defendants performing court‑appointed roles should consider asserting quasi‑judicial immunity early to avoid burdensome discovery.
Malpractice defendants should assess whether the engagement letter lacks specific performance promises and, if so, move to dismiss contract claims as untimely under tort limitations.

Complex Concepts Simplified

Quasi‑Judicial Immunity: A form of absolute immunity that protects individuals who perform functions closely tied to the judicial process (e.g., GALs, custody evaluators, court clerks, some probation officers) from being sued for money damages over their official acts. The goal is to ensure independent, candid assistance to the court without fear of litigation.
“Clear Absence of All Jurisdiction”: A stringent exception to absolute immunity. It applies when an actor functions wholly outside the authority conferred—akin to a judge trying a case he has no power to hear, or a court‑appointed officer acting far beyond the appointment’s scope in a manner unrelated to assisting the court. Mere mistakes, even serious ones, or improper motives do not satisfy this standard.
Guardian ad Litem (GAL): A person appointed by the court to advocate for the best interests of a minor or incapacitated person in litigation, particularly in custody or abuse proceedings. The GAL assists the court with recommendations and often participates in evidentiary processes.
Court‑Appointed Custody Evaluator: Typically a mental‑health professional tasked by the court to conduct evaluations, interviews, and assessments, and to provide the court with findings or recommendations regarding custody, visitation, and child welfare considerations.
Professional Malpractice: A claim that a professional (e.g., lawyer, doctor) failed to meet the standard of care required in the profession. In Oklahoma, legal malpractice is a tort with a two‑year statute of limitations unless the parties’ contract specifically sets out distinct performance obligations beyond that standard.
Dabney Rule (Oklahoma): To transform a malpractice claim into a contract claim with a longer limitations period, the engagement agreement must expressly define specific, promised performance. Generic commitments to represent a client or provide professional services do not suffice; such claims remain torts.
Rule 12(b)(6) Dismissal: A procedural mechanism to dismiss a case at the outset if the complaint does not state a legally plausible claim. Courts may resolve immunity and statute‑of‑limitations issues at this stage if they are apparent on the face of the complaint.

Conclusion

Ward v. Fisher offers a concise yet influential reaffirmation of two important principles. First, it persuasively confirms within the Tenth Circuit that court‑appointed custody evaluators, like GALs, are entitled to absolute quasi‑judicial immunity for actions within the core scope of their appointments. Allegations of error, bias, delay, or malice do not pierce this immunity absent conduct in the clear absence of all jurisdiction. This reinforces a litigation reality: challenges to the performance of these appointees must generally be pursued within the state court proceedings themselves or through professional oversight mechanisms, not collateral civil suits.

Second, the opinion strengthens Oklahoma’s Dabney framework in the legal‑malpractice context. Engagement letters that simply describe the scope of representation do not create contract claims with longer statutes of limitations; claims will sound in tort and be governed by the two‑year period unless the agreement contains concrete, specific promises of performance independent of the general duty of care. Clients seeking to preserve contract remedies must negotiate and document specific performance commitments; attorneys should draft carefully to reflect the intended scope without inadvertently creating contractual guarantees.

Although nonprecedential, Ward v. Fisher will likely be cited for its persuasive clarity on quasi‑judicial immunity for court‑appointed custody evaluators and the contract‑versus‑tort dichotomy in Oklahoma legal malpractice. The decision’s practical impact is immediate: it guides litigants and counsel toward the proper forums and timelines for addressing grievances in family‑court matters and professional‑liability disputes.