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.

What is the role of a GAL?

In some cases dealing with domestic relations, the court may appoint a guardian ad litem (GAL) to help investigate and gather facts regarding the parties’ relationship to the minor children and to present those facts to the court.
The GAL might have the following roles:

  • Conducting factual investigation and gathering and reporting facts to the court
  • Participating in the proceedings, including testifying at trial
  • Serving as an impartial third person in the role of investigator and reporter
  • Arranging for an interpreter for the child if needed

It is important to note that the GAL is an impartial part of the case and not available to provide legal advice to either the child or any parties. The GAL will NOT have the following roles:

  • Serving as a legal advocate for the child or any other party
  • Representing parties to the case

​Just what does the appointed GAL investigate? Those include any facts related to the care, custody, and maintenance of the children, along with any facts involving domestic relations. For example, consider the following three scenarios:

  1. Ian and Isabel are getting divorced and have one minor child. Ian and Isabel separated two years ago, and Isabel has since found employment and established residence in another state. Isabel desires full custody of the child and wants to relocate with the child to the other state. Ian opposes that move.
  2. Jaime and Jake are getting divorced and have two minor children. Jaime has alleged that Jake frequently hits one of the children and abuses alcohol nightly. Jake disputes those allegations.
  3. Kyle and Katie are getting divorced and have three minor children. Katie desires full physical custody of the children and wishes for the children to stay in the marital home with her. Kyle desires full custody of the children and wants to move them to his new home, located in the next town. Kyle believes it is in the children’s best interest to stay with him. Katie believes it is in the children’s best interest to stay with her.

In each of the above situations, the court might appoint a GAL to work through the issues dealing with the care, custody, and maintenance of the children involved. The GAL may, for example, determine: matters regarding visitation and access to the children; matters regarding removal of the children from Massachusetts; and whether supervised visitation for either party might be necessary.

In doing his or her job, the GAL will have access to appropriate medical and hospital records, school records, and psychotherapy records, barring any privileged documents. The attorneys for both parties are expected to communicate with the GAL throughout the case, and to provide information which is necessary for the GAL to perform his or her functions.
The reports and recommendations of the GAL may be considered and followed by the judge in determining issues of custody and visitation; however, the judge may make an order which goes against the GAL’s recommendations. Both parties are entitled to review the GAL’s reports. The reports are, however, impounded and not made available to review by the public.

If you have questions about the role of a guardian ad litem in your case, 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.