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Guardian Ad Litem Appointments in Massachusetts Child Custody Cases

Guardian Ad Litem Appointments in Massachusetts – the Five “Ws”

Navigating the Family Court system in the Commonwealth of Massachusetts can be an intimidating process, particularly if you are not represented by counsel. If you are ever involved in a case with contentious child custody issues, it is important that you are well-informed about the various functions of the court. A Guardian ad Litem, or more commonly referred to as a “GAL” is a common phrase that you should be aware of as it comes up quite frequently in cases where a child’s care and custody is at issue.

A GAL is an individual who serves as an independent investigator for the court and provides judges with an objective first-hand report of their findings. A judge may use a GAL report to look for guidance when making custody related decisions that are in the best interest of the child. If a GAL is appointed to your case, it is imperative to understand their function and roll with the court. The purpose of this article is to lay out the who, what, when, where, and why, as it relates to the purpose of a GAL and why a GAL may play an important role in your case.

Who: Who is a Guardian ad Litem?

A GAL is a trained individual appointed by the Probate and Family Court pursuant to General Laws Chapter 215 § 56A. This statute provides Probate and Family court judges the power to appoint a GAL to “investigate the facts of any proceeding pending in said court relating to or involving questions as to the care, custody or maintenance of minor children” (General Laws Chapter 215 § 56A.)  Typically, a GAL is an attorney who has extensive experience working on cases where child custody is being contested.  However, in certain situations where the facts indicated a history of violence or mental illnesses, a mental health professional may be appointed as a GAL. In Massachusetts there are two types of GALs, which are known within the courts as a Category F and a Category E GAL. The difference between the two is the following:

Category F: A Category F GAL is usually an attorney who will conduct their investigation pursuant to the standing order mentioned below and will provide a written report to the Court based on their findings.

Category E: A Category E GAL is usually a mental health professional who will take the investigation one step further by including his or her medical, psychiatric or psychological opinion in the report they file with the court.

What: What is the purpose of a GAL?

The purpose of appointing a GAL is to conduct research that will help the judge determine a custody arrangement that is in the best interest of the child. The appointment of a GAL and the procedure they must follow is outlined in Probate and Family Court Standing Order 2-28.  This standing order explains the appointment procedure of a GAL and outlines the procedure a GAL must follow once they have been appointed.  Below is a summary of a typical process a GAL will follow.

Once a GAL has been appointed to a case, they will begin preparing for their investigation. The length of a GAL investigation may vary depending on the complexity of the case. During the investigation a GAL will interview the parents, the child(ren) and any third party who can provide an inside perspective to the parent/child relationship. As part of their investigation, a GAL may also review various documents such as the child(ren)’s school and medical records. Once a GAL has completed their investigation, they will prepare a written report based on their findings.

The report the GAL provides the court will consist of a detailed summary of all relevant evidence, facts, and findings as well as specific recommendation about the most appropriate parenting time. In the Commonwealth of Massachusetts all GAL reports dealing with the health and safety of a minor child are subject to impoundment. Impoundment means that the GAL report is unavailable for public inspection. A GAL is required to file their report with the appropriate Probate and Family Court at which point it will only be accessible to certain individuals.  Without a court order, parties are not even allowed to have a copy of a GAL report.

A GAL is not appointed to represent the child at the court hearings. Although this may be their roll in some states, this is not the roll of a GAL in the Commonwealth of Massachusetts.  Their only purpose is to serves as an independent investigator of the court at the direction of a judge to conduct and impartial investigation as it relates to the care, custody and maintenance of the child. If a judge deems it appropriate for the child to be represented by counsel, an ARC attorney will be appointed.

The cost of a GAL will vary from case to case. Like attorneys, a GAL will bill hourly and will require a retainer before they will start their investigation (unless the Court orders the Commonwealth to pay). The complexity of a case will dictate how many hours the GAL will need to complete their investigation. Usually a judge will order that one or both of the parties are responsible for covering the cost of the GAL.  In limited situations, the parties can agree how the GAL will be paid.  If neither party is capable of paying for a GAL, the court may appoint a GAL that is paid for by the Commonwealth.

When: When does a GAL get involved in a case?

A GAL is usually appointed to a case when concerns arise of one or both parent’s ability to care for the minor child. If there is any concern for the child’s safety or if there is a history of mental illness, drug abuse, or violence, it is common for a judge to appoint a GAL to conduct an investigation. A GAL investigates facts in cases involving the care and custody of minor children and other matters that implicate children’s best interests.  A GAL is generally appointed in cases that raise questions about: custody and visitation; a custodial parent’s request to move the child out-of-state (i.e. removal); changes in circumstances that might warrant modification of a court order; the existence of a parent-child relationship; paternity issues; termination of parental rights; or other matters that implicate the interests or rights of children.  (See Mass. G.L. c. 215, s. 56A; Mass. G.L. c. 208, s. 16).

Where: Where does the GAL investigation take place?

A GAL will typically conduct their investigation in an environment where the child feels comfortable. Most often this means that a GAL may visit the child at home. By conducting their investigation in the home, the GAL can observe the environment the child lives in.  This allows the GAL to make observations about how the child behaves independently and as a member of the family. These observations from the home serve as a basis for the GAL’s report and ultimate recommendation to the Court.

Why: Why is a GAL involved in your case?

The practice standards of a GAL generally focus on the mechanics of conducting fair and balanced factual investigations and filing detailed reports that provide accurate information about the parties and their children.

A GAL is typically appointed specifically by a judge using a list of available GALs in the Commonwealth.  Alternatively, parties can agree on the appointment of a GAL and can request the Court appoint that specific GAL.

Both Attorney Caradimos and Attorney Setterbo are accredited GALs in Massachusetts.

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