Guardian ad Litem

There several types of Guardian ad Litem (GAL) appointments that occur in the Probate and Family Court.

A Guardian ad Litem/Investigator is an impartial professional (often an attorney) appointed by the court to investigate and report to the court on contested issues in domestic relations cases involving minor children, such as custody and visitation. The GAL investigates the matter by interviewing the children and parents as well as third parties involved with the family, such as teachers and doctors. 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 or may not include recommendations for resolution of the matter, such as suggestions for counseling or visitation. While the judge is not required to adopt the recommendations of the GAL, the court generally places great weight upon the report.

A second type of GAL often appointed in domestic relations cases is the GAL/Next Friend. This type of GAL is not an impartial investigator. Instead, the GAL/Next Friend represents the best interests of the minor children involved in the proceeding. The GAL/Next Friend is not, however, an attorney for the children. While an attorney is required to advocate for the expressed preferences of his or her client, the GAL/Next Friend advocates for what he or she believes to be in the best interest of the children. In order to do this, the GAL/Next Friend meets with the children and family, as well as professionals involved with the family and also reviews school and medical records.

If minor children involved in a domestic relations case are in therapy, the issue sometimes arises as to whether their confidential communications in therapy may be disclosed in court. For example, the GAL/Investigator or GAL/Next Friend may wish to speak with the therapist and/or review therapy records. In order to so, the Court must appoint a third type of GAL, a GAL to exercise or waive the children’s psychotherapist/patient privilege. The role of this GAL is confined to deciding whether the need to access the privileged communications in the case outweighs the children’s right to keep communications with their therapist confidential. This GAL will meet with the children, speak briefly to the therapist and prepare a short report for the Court recommending either to exercise or waive the privilege.

A GAL may also be appointed in non-domestic relations cases in the Probate and Family Court. The Court may appoint a GAL in a case involving guardianship or conservatorship of an incapacitated or protected adult, in order to investigate the conditions under which said person is living and to report and make recommendations to the Court. Additionally, in a probate matter (such as matters involving estates or trusts) the Court may appoint a GAL for a minor or an incapacitated or protected person if such person has an interest in the proceeding. In cases involving elders or disabled adults who have allegedly been abused, the Court may appoint a GAL for said person in a proceeding 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 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, he or she is not acting as an attorney for any party when appointed as a GAL. 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. 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 children at least once, but possibly more often. While some GALs will request to meet at their office, others will prefer to meet at your home in order to view the environment in which the children reside or visit. The GAL will need to meet with the children privately to talk with them regarding the issues at hand in language that they can understand. The GAL may have you sign authorization forms so that he or she can obtain medical and educational records. If you have copies of any relevant documents that you would like the GAL to review, be sure to make copies before the meeting. Also prepare a list of collaterals whom you believe it would be helpful for the GAL to contact, such as school professionals, pediatrician or other medical providers, family members, etc.

After meeting with the parties and the children, the GAL will begin to speak with the collaterals and request records. As the investigation progresses, the GAL may contact you for further information. Once the GAL feels that all relevant information has been gathered, she or he will prepare the report that will be filed at court. As a party to the case, you and your attorney have the right to review the report at court. Your attorney may request that the Court allow him or her to retain a copy of it. The information in the report should not be shared with the minor children involved in the case.

Many clients ask how a GAL is paid. The Court may order that the fee be paid by one of the parties, but often it orders 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 his or her fees independently. While the Court appoints the GAL, the attorney for each party may submit the 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.

Get In Touch

If you are looking for a Guardian ad Litem for your case in Probate and Family Court,
please contact Levine-Piro Law at 978­-637-­2048