Guardian Ad Litem Investigations
A Guardian ad Litem, also referred to as a GAL, is a person who can be appointed by the court “to investigate and/or evaluate the child, the child’s family, and the child’s home life; and to share findings with the judge.” (Hostetler and Sabino 2018, 305) A Guardian ad Litem (GAL) often has the goal of advocating for the child’s best interests. However, there are several types of Guardian ad Litem appointments that occur in the Probate and Family Court, including Guardian ad Litem/Investigators and Guardian ad Litem/Next Friends.
A Guardian ad Litem/Investigator is an impartial professional (often an attorney) who is appointed by the court to investigate and report on contested issues in domestic relations cases that involve minor children, such as custody and visitation. The GAL investigates the matter by interviewing the child, parents, and third parties involved with the families (teachers, doctors, etc.) The GAL will also request that authorizations be signed in order to review relevant documents such as school and medical records. After gathering all relevant information, the GAL then prepares and files a written report of the facts found during the investigation which may also include the GAL’s recommendations/suggestions to resolve the matter. While the judge is not required to adopt those recommendations/suggestions, the court generally places great weight upon the GAL’s report.
A second type of Guardian ad Litem that is often appointed in domestic relations cases is the Guardian ad Litem/Next Friend. This type of GAL is not an impartial investigator nor an attorney for the child. Instead, the GAL/Next Friend’s goal is to represent the best interests of the minor child involved in the proceeding. While an attorney is required to advocate for the expressed preferences of their client, the GAL/Next Friend advocates for what they believe to be in the best interest of the child, regardless of the child’s expressed preference. In order to do this, the GAL reviews school and medical records and meets with the child, family, and professionals involved with the family. – Do we want to include this paragraph? I almost never see a next of friend appointed. I think instead we should do a paragraph about the Category E evaluator GAL.
If a minor child involved in a domestic relations case is in therapy, an issue sometimes arises as to whether their confidential communications in therapy may be disclosed in court. For example, the GALmay wish to speak with the child’s therapist and/or review the child’s therapy records. To do so, the court must appoint a special type of Guardian – one to exercise or waive the child’s psychotherapist/patient privilege. The role of this Guardian is confined to deciding whether the need to access the privileged communications in the case outweighs the child’s right to keep communications with their therapist confidential. This Guardian will meet with both the child and the therapist and then will prepare a short report for the court to recommend whether or not to waive the psychotherapist/patient privilege. – I just went to the training on this and they revised this position to just be called a “Guardian” and removed the ad litem part.
A GAL can also be appointed in non-domestic relations cases in the Probate and Family Court. The Court can appoint a GAL in a case involving guardianship of a minor, or a guardianship or conservatorship of an incapacitated or protected adult in order to investigate and to make reports and recommendations to the court. Additionally, in probate matters such as estates or trusts, the court may appoint a GAL for a minor or incapacitated or protected person if such person has an interest in the proceeding. In cases involving an elder or disabled adult who has allegedly been abused, the court may appoint a GAL for said person to determine if that person has the capacity to consent to the provision of protective services.
What to Expect if a Guardian ad Litem is Appointed in your Case
The Guardian ad Litem will contact you or your attorney shortly after their appointment to set up a time to meet. You may have your attorney present at the meeting, although many attorneys feel that the GAL meeting is more productive if they do not attend.
It is important to remember with all GAL appointments that although the person appointed as the GAL may be an attorney, they are not acting as an attorney for any party. Therefore, nothing said to the GAL is confidential and any information relayed to the GAL may be shared with the court and with the other parties in the case. A good GAL will inform you of this prior to your meeting.
The GAL will meet in person with the parties and with the minor child(ren) at least once, but possibly more often. While some GALs will request to meet at their office, others prefer to meet at home in order to see the environment in which the child resides or visits. The GAL will need to meet with the children privately to discuss the issues at hand in language that they can understand. The GAL may have you sign authorization forms so that they can obtain medical and educational records. If you have any relevant documents that you would like the GAL to review, be sure to make copies before the meeting. Also be sure to prepare a list of people who you believe would be helpful for the GAL to contact, such as school professionals, medical providers, family members, etc.
After meeting with the parties and the child, the GAL will begin to speak with the third parties and request records. Once the GAL feels that all relevant information has been gathered, they will prepare the report to be filed with the court. As a party in the case, you and your attorney have the right to review the report in court. Your attorney may request that the court allow them to retain a copy of it. The information in the report should not be shared with any minor children involved in the case.
How is a Guardian ad Litem Paid?
The court may order that the GAL fee be paid by one of the parties, but often it is ordered that the cost be shared by the parties. If both parties are indigent, the court may order that the Commonwealth pay for the GAL. There are no “standard” GAL fees set by the court in private cases – each GAL sets their fees independently. While the court appoints the GAL, the attorney for each party will often submit names of appropriate GALs who are available to accept the case. If it is likely that a GAL will be appointed, it is a good idea to discuss the choice of a GAL with your attorney in advance of the hearing.