Working on materials for an upcoming lecture on attorney/guardian interactions, I realized that it had been years since I last felt compelled to “attack” the guardian ad litem at trial. However I am often asked by colleagues on effective techniques to undermine the guardian. There are times when the only effective strategy for minimizing a guardian’s impact is to attack the guardian. However, generally, there is a better method: produce evidence that renders the guardian’s testimony irrelevant and exposes it as a product of an inept or biased investigation.
For temporary hearings–where one lacks the ability to provide detailed testimony and evidence to demonstrate a guardian’s errors–attacking a biased or inept guardian is probably required. For situations in which the guardian is lying about his or her interactions with and observations of the client (something that, thankfully, has never happened to me), attack is probably also necessary. However for situations in which the guardian is misrepresenting the child(ren)’s preference, simply noting that one disputes the guardian’s representation of preference and asking the judge to interview the child(ren) is a better method of blunting any impact from the guardian’s inaccuracy.
Most often litigants want to attack the guardian because they disagree with the findings in the guardian’s investigation. To the extent these findings are accurate, attacking the guardian is an ineffective strategy. However when these findings are inaccurate, it is more powerful to prove the inaccuracies through other evidence than to impeach the guardian through cross examination.
Assume for example one represents a mother in a custody case. The guardian’s report inaccurately claims that mother has a drinking problem and that father has been the children’s primary caretaker. Rather than attack the guardian one should simply present evidence showing the guardian is wrong. Having numerous witnesses who know the children well explain how mother has been the primary caretaker and providing evidence demonstrating mother’s sobriety effectively undermines that guardian’s conclusions. Developing that testimony and evidence may be more time consuming and mentally taxing than attacking the guardian, but it’s also much more effective.
Assuming one has done this in one’s case-in-chief, a very effective, though not necessary, cross examination technique is to start by asking the guardian if he or she stands by his or her conclusion. If the guardian stands firm, one can ask a series of “despite” questions. For example, “You contend the father has been the primary caretaker despite the child’s school teacher testifying that she primarily interacts with the mother?” or “You contend the mother has a drinking problem despite the fact that she’s been promoted three times in the past four years at her job?” These “despite” questions undermine the guardian’s conclusions, assuming the guardian stands firm, while highlighting the helpful evidence that proves otherwise. This is vastly more effective than trying to “prove” the guardian is a lying idiot.
There is rarely a need to attack a guardian at trial. To the extent the guardian’s investigation is accurate and unhelpful, it is better to accept its accuracy and seek the best possible result through negotiation (or limit one’s goals at trial). To the extent the guardian’s investigation is inaccurate and unhelpful, it’s simply better to prove the inaccuracies.
Thank you, as always for your clear-headed help, Greg.
I agree with you 100 percent.
Your articles are always an interesting read.
Thank you for taking your time to enlighten all of us.
What is the common practice of appointing the GAL? Does the plaintiff’s attorney select the GAL and then is he/she approved by the Court? What if the Defendant does not agree and objects to the appointment? Shouldn’t the Judge appoint a GAL with or without either party’s recommendation to guard against bias? Please excuse my ignorance.
Since attorneys are often ordered to serve as GALs I will share the horror in that.
If no psychologist with vast experience is involved the GAL’s opinion is worthless. No one has ever mistook a lawyer for a forensic psychologist and your “numerous training classes” are not a terminal degree in human behavior, mental health, child developmental, ect. now are they. The hubris of some attorneys in this respect is repulsive. When you have the power to influence a court concerning future family dynamics, based on your uneducated opinion, you are unethical and immoral .
By simply being placed in a position does not give you some magically bestowed ability to correctly come to determinations. Lawyers who do this in families involved in heated divorces knowingly committing reprehensible acts.
Many observations then recommend actions are simply wrong. These high conflict divorces are counterintuitive at times. For instance, a child will usually cling to an abusive parent. There is an evolutionary component to this. The behavior can also be seen as a “strong bond” as one GAL wrote, between a father and son. The father was later found to be abusive (sexually, physically, emotionally) to the child.
ATTORNEYS Acknowledge your limitations and stay the f@@k out of the worthless creation of a GAL role. The position was created mostly by attorney lawmakers to help their lupine (attorneys working family court cases) kin.
I do have a few questions that I have listed below:
1) I recently lost my job due to layoffs and attorney filed for motion of relief a month before a highly contested trial due to fees. It was granted. Therefore, I am representing myself because in the beginning (3 years ago) I hired an attorney who just graduated law school and it did way more damage than good. Damage I still haven’t recovered from. I don’t have funds for another attorney currently and I’m going up against a top-notch opposing counsel, Donnie Gamache. I was told by the mediator he is understating the value of his evidence.
2) The GAL has been negligent, biased, and incorrect in almost every facet. Due to my complicated medical issues, he took it upon himself to make medical recommendations or question things that my doctors answered in prior conversations with him (I was present during conversation). Now he is back to questioning things in his final report that were previously answered. Furthermore, pulling my records wasn’t enough. He wanted to speak with my doctors. He got all questions answered and still got it grotesquely incorrect. Questioning my ability to raise my son due to not knowing if the sleep disorder caused drowsiness or side affect of meds. He has all medical records and I doctors told him it wasn’t the meds but my sleep condition that’s now being treated. Now it’s like he forgot he had those conversations with my doctors. I feel like a ray running on a circle that’s never ending. How can I question him listing incorrect diagnosis’s, blaming meds despite what my doctors told him, and using the ignorance that Suboxone treatment is wrong (I see a pain management dr and he spoke with this Dr who told him I have had clean drug screens for 10 years and yet he says I never informed him of opiated dependence – my dr even clarified for him the huge difference between physiological dependence and addiction and that I was alway physiologically dependent not an addict). The GAL is very confused over complicated medical issues, including my autoimmune and sleep disorders, and butchered the report and put the focus back on me, incorrectly. All of my doctors are willing to write affidavits and get notarized before trial to show his report is grotesquely biased, false, and missing information.
4) My ex husband wouldn’t stop smoking pot around our young child and that’s why I left him. He turned the cards on my meds prescribed my doctors while he bought enough time to clean his system. He has a 3 page arrest record of drug charges, all before child, and I have nothing on my record. I have my masters degree and he has a diploma. Yet the GAL never mentioned his record, history of drug use, and made me out to be the addict despite everything my doctor told him. I’m unsure how to overcome such bias.
4) What recommendations would you make. He knows I cannot afford a private supervisor as I haven’t been able to afford going to another heating and he was very slow and gathering evidence. He seemed biased against me from the start. Therefore I have been on supervised for 3 years and we finally to trial in November but now I no longer have an attorney. This is what I was waiting for to win my son back because he misses me. My husband had little to do with raising him until now and even still the grandmother does most of the work, not exhusband. Yet GAL states dad is doing it on his own, easy to prove wrong because he works 2 hours away from home. GAL also states nothing negative about dad the evidence of abuse I went through, didn’t call witnesses I gave him who witnessed abuse, and flat out ifnored 70 plus recordings I have of ex husband being abusive in front of child. Not the mention the 7 letters my therapist wrote him regarding my time seeing her over the last 8 years, what she witnessed, and her concerns over sons mental health, requests for forensic exam for father and therapy for 9 year old son, and other concerns she witnessed. He never even mentioned my therapist at all despite talking to her. I’m baffled by this negligence. I don’t know what to do about this. He didn’t even mention our marriage counseling notes that discuss abusive behavior.
Please advise.