(dissenting).
The failure to appoint a guardian ad li-tem to represent the interests of the children under the facts of this case requires that we remand for a rehearing. The custody study was completed months before the mid-trial allegation of Leona Sucher’s sexual abuse of the children. Although the trial court found there was insufficient evidence to support a conclusion that Sucher had committed acts of abuse, a volunteer advocate believed the allegations and their ultimate truth has not been determined. If, as Leona Sucher asserts, Nicholas Such-er was coaching the children, then an unfounded allegation of abuse may have influenced the court's custody determination.
Both parties requested the appointment of a guardian ad litem. The threat posed to the children’s physical and emotional safety required "vigorous, independent representation of the children by counsel acting in their interest and their interest only.” See M.M. and C.M. v. R.R.M., 358 N.W.2d 86, 89 (Minn.Ct.App.1984). Such representation would ensure a more thorough evaluation of the fitness of both parents and assist in uncovering the truth of the allegations of abuse.1 The particular vulnerability of these children, the allegations of sexual abuse, the alleged physical abuse of Leona Sucher by Nicholas Sucher, and the trial court’s misplaced reliance on the custodial preference of children ages 7, 6 and 4 require a rehearing after the appointment of a guardian ad litem.
Similarly, while it appears that most of Leona Sucher’s newly discovered evidence could have been discovered sooner, that should not preclude a new trial when the outcome affects not only Leona Sucher, but also the three children. Although the trial court stated that the new evidence would not have changed the outcome of the case, it is likely that had the children been independently represented, evidence on Nicholas Sucher’s fitness would have been more closely scrutinized.
Finally, I do not believe that the possibility of foster care should have been so lightly dismissed. Despite the court’s finding that both parents were capable of providing sufficient care for the children, the facts are sufficiently disturbing to warrant alternative placement until there is substantial progress in overcoming negative parenting patterns.
. Under an amendment which became effective on January 1, 1987, Minn.Stat. § 518.165, subd. 2 (1986), now requires the appointment of a guardian ad litem in any child custody proceeding in which "the court has reason to believe that the minor child is a victim of domestic child abuse or neglect."