Guardian ad Litem ReportsDec 19, 2017
In cases involving parenting disputes, the Court may appoint a guardian ad litem (“GAL”). The GAL is typically an attorney or a mental health professional, but must be trained and certified as a GAL. The role of the GAL is to represent the best interests of a child, conduct an investigation and make a recommendation as to what parenting arrangements are in the best interests of the children. To fulfill this responsibility, a GAL must first conduct an investigation, which may involve not only the child and the family but also others who have contact with the family, such as physicians, teachers, therapists, childcare providers, coaches, neighbors, friends of the family and family members. GALs have the right to review the child’s (and sometimes the parents’) medical and counseling records, to review school records, and to interview anyone with an interest in the child. The GAL may make interim recommendations to the court. For example, if there is a concern about drug or alcohol use by a parent, the GAL may recommend a LDAC assessment be done.
Either on a preliminary or final basis, or both, the GAL submits a report stating findings and recommendations to the court. In some instances, the GAL will assist in resolution of parenting issues, but the loyalties of the GAL are to the child. Once the GAL has completed his or her report, the GAL file is subject to review by the attorneys, although the child’s interviews and certain medical and counseling records of the parties may be sealed, depending upon the circumstances of the case. The GAL will present his or her findings and recommendations to the court and may be cross-examined by the attorneys.
While the role of GAL is extremely important and valued by the courts, their recommendations are not automatically binding upon the court. “Recommendations of the guardian ad litem do not, and should not, carry any greater presumptive weight than the other evidence in the case. The guardian ad litem is appointed to represent the best interests of the child, not to make a conclusive or presumptive determination; that is the province of the court or master.” (Richelson v. Richelson, 130 N.H. 137, 143 (1987).) As a practical matter, however, courts often follow the GAL’s recommendations. Often, once the parties receive the GAL’s report, they try to settle the case along lines suggested in the GAL’s report.
After a parent receives the GAL report, the first instinct might be to share the document with family, friends and perhaps professionals such as therapists or teachers. It is important to hold back on this urge because the GAL report is confidential. Circuit Court Rule 2.15 states: “Written reports of the guardian ad litem shall be kept in an envelope marked confidential within the court file, and shall only be disclosed to parties or attorneys to the action.” The GAL report is not part of the public court file. If there is a need to review the GAL report by a non-party, or an interest in using the GAL report in another case, that person needs to obtain a court order allowing access to the GAL report.
About the Author: Judith A. Fairclough