GUARDIANS AD LITEM

+ What is a guardian ad litem and why would I want one involved in my case?

When parents cannot agree on who should have legal or physical custody or whether custody should be shared or not, the Court will often appoint a “guardian ad litem,” --- an investigator (a “GAL”). This person is usually a psychologist, but is sometimes a lawyer. Depending upon what issues arise in your case, you may want one or the other. If your spouse exhibits certain behaviors that you think will be difficult to detect or to name, or whose significance to the family may be lost upon a non-psychologist, you should strongly consider asking the court to appoint a mental health professional. Bipolar disorder, for example is often downplayed; the spouse who has it may deny it, say that it is under control through medication, or state that he/she has never been hospitalized, so that the mere diagnosis is of no significance. A mental health professional, however, will look for the mood swings that accompany this pernicious problem, and that person will also be aware that many patients go off their medication, only to experience unsettling symptoms later. A lawyer investigating this may miss the entire issue. Likewise, certain behaviors may have been undiagnosed, yet they may be indicators that such a person should not have primarily physical custody of a child. A guardian ad litem will be helpful in interviewing the parties, collecting medical and other records, and interviewing “collaterals”— those persons identified by the parties as having important information concerning custody.

Guardians ad litem will interview the children, see them interact with the parents, review documents submitted by the parties, seek out medical and psychological records, talk to witnesses suggested by the parties, and otherwise gather the relevant information in order to write a report to the court.

Unfortunately, many courts do not have the funds to pay for private guardians ad litem, and so the cost falls upon one or the other or both spouses. Guardians ad litem generally are paid at their normal hourly rate (which may be upwards of $100.00 per hour for investigating, writing a report to the court, and testifying, if necessary). The report of a GAL can be used in evidence at trial if the GAL testifies, or if there is agreement on its use. Parties have a right to cross examine the GAL and to call the witnesses who were interviewed by the GAL to contradict the report and the GAL’s testimony (except that the court does not want children to testify and be cross examined in court.) Providing accurate information to the GAL with back-up documents is critical in obtaining a favorable report.

- Jerome L. Aaron, Attorney at Law, Massachusetts