Best Practices for Working with a Guardian ad Litem

In some cases, a Guardian ad Litem’s services are a key component.

Imagine the following scenario: a ten-year old child named Jacob is diagnosed with a “curable” form of cancer. If Jacob is brought to a hospital for regular chemotherapy treatments, then Jacob has a chance to beat the disease and live a healthy and stable life. Jacob’s parents, however, are devoutly religious people with the deeply held belief that God and prayer are the only acceptable ways for their child to be cured of cancer. The parents believe that if Jacob is meant to be cured, then God will provide for the cure. As such, Jacob’s parents are refusing any medical treatment for Jacob.

This scenario might trigger a court case, one in which the state of Massachusetts has a special interest in advocating on behalf of Jacob to ensure that he has a chance to beat his disease, even against the wishes of his religious parents.

If a Justice of the Massachusetts Probate and Family Court appoints a Guardian ad Litem to the case involving Jacob, the Guardian must be impartial. He or she investigates or evaluates the family and has a duty to investigate the family’s situation. This investigation may include interviews with Jacob and his parents and home visits. After reviewing the family circumstances, the Guardian ad Litem creates a detailed report to file with the court. The person does not take sides and is supposed to be an impartial third party.

When working with a Guardian ad Litem, it is important to remember certain best practices. First, it is necessary to know that the Guardian ad Litem is not your attorney, and anything that you share with him or her may be reported to the Justice in your case. The person does not need to keep any confidential information that you may believe you are sharing in confidence.

Second, it is also important to remember that you must provide the Guardian ad Litem with accurate information and to share with the Guardian ad Litem any information about other people who may have information in support of your case.

Third, it is important to remember that depending on the circumstances of your case, the investigation or evaluation process with a Guardian ad Litem may take several months. Because the process may be long, it is wise to keep written documentation about what you want to share with the person; what you have shared with the person; when and for how long you spoke with the Guardian ad Litem; and any other information that you think would benefit your case. When you speak with the Guardian ad Litem, you should create a summary or bulleted list of important points that you wish to share, so that you stay focused with your thoughts.

Another item to consider is that there may be a cost associated with the Guardian ad Litem process, which you may be required to pay. Also remember: because the Guardian ad Litem is an impartial person, he or she may seem distant or highly questioning of you. This does not mean that he or she does not believe you or what you’re saying, but rather, it means that he or she is performing his or her due diligence in remaining impartial for the report to be given to the Family Court Justice.

Encourage those with whom you know the Guardian ad Litem will be speak to remain truthful. Provide factual information requested by the Guardian ad Litem, but be sure to speak with your attorney and not the Guardian ad Litem about facts that may or may not hurt your case. If the Guardian ad Litem requests that you sign consent forms to obtain confidential information from professionals, be sure to speak with your attorney before you sign any documentation. After the report is created, you have a right to read the final report. You may not copy the report without permission from the Massachusetts Family Court Judge.

In the above case with Jacob, the Guardian ad Litem will present the facts of the family situation, but the Guardian ad Litem is not a legal advocate of Jacob. Although Massachusetts values religious freedom, this freedom is not limitless when the care of a child with a curable form of cancer is concerned. There are other circumstances when a Guardian ad Litem may be involved such as a divorce, separation, or other matters that affect children or the family unit.

If you are seeking a competent family law or child law lawyer or domestic relations attorney, please contact our offices by phone at 978-225-9030 during business hours or complete a contact form on our website. We will respond to your phone call or submission promptly, and you may schedule a free consultation with us.

Keeping Children from the Presence of a Third Party During Custody Arrangements

Leila and Liam are divorced and share physical custody of their two children. Liam has a new girlfriend who has moved in with him. Leila disapproves of their living arrangements, which she claims are against her moral beliefs. She wants to know whether she can prevent Liam from having his girlfriend, a third party, around her children. What will the judge do when encountering this and other third party custody issues?

When determining whether a party may prevent the other party from keeping the children in the presence of a third person, the Courts will weigh whether any adverse impact has been made on the children.

In a key Massachusetts case, the Court granted custody to the father; the mother appealed, asking the Court to prohibit the husband from allowing their youngest child to be in the presence of the husband’s new girlfriend, with whom he was cohabiting. [1] The mother argued that her children were being exposed to immoral behavior by seeing their father cohabit with another woman to whom he was not married. She cited to a number of older laws, such as those which once prohibited cohabitation.

The Appeals Court held that the child needn’t be prohibited from being in the presence of the father’s new partner, because there was no evidence that any of the three children were adversely impacted. The Court noted: “in the usual case, judges should avoid making moral judgments on the lifestyles of proposed custodial parents, recognizing that such judgments are appropriate only when it can be shown that a parent’s lifestyle has a direct and articulable adverse impact on the child, or where there can be no real dispute in the circumstances of the particular case that the behavior of the custodial parent is related to his or her parenting ability.”[2]

In another case, the Appeals Court decided on custody matters between a husband and wife, where the wife was engaged in an incestuous relationship with her biological father. The Court granted primary custody to the wife, holding that she was the primary caregiver and that the husband exhibited little inclination to take care of the child while they were residing with him. However, the Court also noted the importance of keeping the children’s grandfather away from them. The Court prohibited the mother from allowing the children to have any contact with her father. [3]

“There can be no real dispute that if the wife and [her father] were to engage in an ongoing incestuous relationship to which the minor children were exposed, directly or indirectly, then at some point there would be a direct and articulable adverse impact on the children,” the Court noted. “In these circumstances, it would be error to omit such an essential prophylactic measure to safeguard the well-being of the children, especially one that was already in place and relied on by the judge and other experts at the award of physical custody.” [4]

In a recent decision, the Court, however, declined to apply the decision in B.B.V. to the claims of a mother, whose husband was having an adulterous relationship with the parties’ former au pair, that the children ought to be kept from the presence of the au pair. [5] The Court stated: “we reject the mother’s argument that there are “compelling” parallels between this case and B.B.V. v. B.S.V…where we imposed a limitation on the award of physical custody in favor of the wife by requiring that she not allow or permit the children to be in the presence of her father, with whom she was in an incestuous relationship. In B.B.V ., there was expert witness testimony at trial about the risks the children would face if exposed to the relationship between their mother and grandfather, and we acknowledged that such exposure ‘would be a direct and articulable adverse impact on the children.’… In this case, comparable evidence of a ‘direct and articulable adverse impact on the children’ as a result of the father’s relationship with the former au pair is noticeably lacking.” [6]

If you have any questions about divorce or custody, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.

[1] Fort v. Fort, 12 Mass. App. Ct. 411 (1981).

[2] Id., at 415.

[3] B.B.V. v. B.S.V., 68 Mass. App. Ct. 12 (2006).

[4] Id., at 20.

[5] Jankovich v. Jankovich, 88 Mass. App. Ct. 1111 (2015).

[6] Id., at 3.

Primary Caretakers and Custody Issues

Nancy and Nick are married but separated. Nancy lives in the marital home with the couple’s daughter, Nicole, who is nine years old. Nancy has been Nicole’s primary caretaker since Nicole was born. As such, Nancy believes she is automatically entitled to full legal custody and physical custody of Nicole. Is Nancy correct?

Not necessarily. Massachusetts does not recognize the presumption that the primary caretaker of a child is entitled to custody.

Generally, the court will consider matters of custody by examining what is in the best interests of the child. The best interests of the child standard includes many factors. The court considers the presence of all relevant factors in its custody orders, and each factor may be weighted differently from the others, depending on the individual facts of the case.

Naturally, one factor for the Court to consider is which parent has served as the primary caregiver of the child(ren). The Court reviews this factor to determine not only which parent has undertaken the bulk of child-rearing responsibilities, but also with which parent the child(ren) formed deeper and stronger bonds. However, being the primary caregiver does not always mean the parent will receive custody. The Court will scrutinize the level of care provided by the caregiver parent, and it will ultimately decide whether continuing that care is in the best interests of the child(ren).

In one case, the Court considered custody of a minor child whose primary caregiver had been the mother, but whose father had extensive visitation with the child and took care of the child well during his time with her. The Court looked at factors such as the lack of structure in the mother’s home and the unwillingness of the mother to share information with the father and involve him in key decisions regarding the child. The judge also noted that on several occasions, the mother engaged in conduct which was not in the child’s best interests, including driving her without a car seat and allowing her to sleep in bed with the mother and her boyfriend. The judge, by contrast, noted that the father engaged the child in educational and stimulating activities, and that he cared for her everyday needs whenever the child was with him. The judge ordered that, despite the mother being the child’s primary caregiver, the father should have custody; the Appeals Court affirmed. [1]

While being the primary caretaker is one factor in custody determinations, it is one of many factors considered by the Courts. If you have questions regarding custody, it is advised that you seek the advice of experienced counsel. Should you wish to schedule a free consultation with our office, you may call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.

[1] In re Custody of Zia, 50 Mass. App. Ct. 237 (2000).