An Iconoclastic View of the Guardian ad litem’s Role (January 2009)

Material for Charleston County Bar CLE–January 2009 and South Carolina Bar annual GAL training–January 2010; republished in American Journal of Family Law, Winter 2011

The guardian ad litem in a custody case acts as the child’s representative, advocating for the child’s best interests before the court. Prior to the Supreme Court decision in Patel v. Patel, 347 S.C. 281, 555 S.E.2d 386 (2001) and the 2003 enactment of the statute regulating private Guardians ad litem (now S.C. Code § 63-3-810, et seq.) guardians were provided little guidance as to how to properly perform their role. Most guardians would represent the best interests of the child by talking to any witness either side suggested, meeting with the parties and the child on multiple occasions, weighing what they learned in their investigation, and then making recommendations on custody and visitation. Written reports–which were not required and issued only at the guardian’s discretion–were filled with hearsay and would generate tremendous controversy in both the accuracy of the guardian’s factual reporting and the conclusions reached. Many (if not most) attorneys used the pre-trial stage of the guardian’s investigation to “spin” the guardian to make recommendations in their client’s favor and used to trial to either bolster or attack the guardian’s recommendations (by either showing that the guardian’s investigation was complete and accurate or showing that the guardian’s investigation was incomplete, inaccurate or biased). Since the guardian’s recommendation was frequently based on discussions with persons who were not called to testify at trial and since the guardian’s written reports were often filled with hearsay from third-parties, trials often became contests over whether the guardian was accurately reflecting what various persons had said.

The private guardian ad litem statute has put significant limitations on the guardian’s role. A specific statute, § 63-3-830, sets forth the guardian’s responsibilities and duties. That statute requires the guardian to interview “parents, caregivers, school officials, law enforcement, and others with knowledge relevant to the case.” § 63-3-830(A)(2)(d). It requires the guardian to issue a final written report within a set time frame prior to the final hearing. § 63-3-830(A)(6). This written report “must not include a recommendation concerning which party should be awarded custody.” Id. “Any report or recommendation of a guardian ad litem must be submitted in a manner consistent with the South Carolina Rules of Evidence and other state law.” § 63-3-830(B). The statute further authorizes the guardian to “submit briefs, memoranda, affidavits, or other documents on behalf of the child. A guardian ad litem may also submit affidavits at the temporary hearing.” § 63-3-830(B).

My own impression is that, other than uniformly doing written reports for final hearings and avoiding explicit custody recommendations, guardians have not changed their methods since the enactment of this statute. However, I believe that this statute, and relevant case law, required and requires a radical rethinking of how guardians operate: away from a generator of overarching opinions and towards a gatherer of probative information.

Foremost of the changes is the requirement that reports conform to the rules of evidence. While the statute requires the guardian to interview various third-parties with “knowledge relevant to the case” it forbids the guardian from including this information in the written report if the information does not conform with the rules of evidence. With limited exceptions statements of those other than the parties and the child^[1] are hearsay and such statements should not be used in the report. The old habit of interviewing every person suggested by either party and then describing in the report what the guardian was told is improper. If a witness has material information, that witness either needs to have an affidavit submitted for a temporary hearing or be called as a witness at trial. This does not prevent the guardian from informing the parties or their counsel of information obtained from witnesses that does not meet the hearsay exceptions. In fact, providing this information can be quite useful so that the parties can use this information in preparing for trial. However the guardian should refrain from presenting this information to the court.

I believe there are other serious limitations on using information gleaned from non-parties in the guardian’s report. The family court judge who hears the case is the ultimate determiner of a witnesses credibility. See Christy v. Christy, 347 S.C. 503, 556 S.E.2d 701, 706 (Ct.App. 2001), aff’d as modified, 354 S.C. 203, 580 S.E.2d 444 (2003) (absent parties’ consent the judge who hears the witnesses testify is only one who can make credibility determinations). Further it is the judge’s province to weigh evidence. See e.g. Cannon v. Cannon, 321 S.C. 44, 467 S.E.2d 132,134 (Ct.App. 1996); Bailey v. Bailey, 293 S.C. 451 361 S.E.2d 348, 350 (Ct.App. 1987). To the extent that a guardian’s report explicitly weighs evidence or makes credibility determinations, that report usurps the trial judge’s role. A guardian’s report that implicitly weighs evidence or makes credibility determinations is more insidious because neither the parties nor the court can know how much of the report is based on the guardian’s direct observations as opposed to these improper actions.

Because of this limitation, I tend to limit my witness interviews to witnesses who have direct knowledge of fitness issues regarding the parents or to witnesses who have substantial or frequent contact with the child (school teachers, day care providers, coaches, pediatricians, parents of other children of a party) or to witnesses who have directly knowledge of safety issues surrounding the parents or the child. Further, if I believe the court needs to hear from a particular witness, I subpoena the witness for a final hearing or prepare a witness affidavit for a temporary hearing.

The investigation should be tailored to the specific allegations of the case. The guardian should look to the parent’s allegations to determine which witnesses to interview and what issues to investigate. For example if one parent believes that custody should be changed due to educational neglect, I would want to speak to witness who have knowledge of the child’s schooling and the parties’ level of school involvement, and obtain information regarding educational issues. If one parent believes that custody should be changed due to the other parent’s drug use, I would want to speak to witnesses who have knowledge of that drug use and obtain information regarding this drug use.

The explicit restraint on including information that does not comply with the rules of evidence in the guardian’s report coupled with what I believe are implicit restraints on making credibility determinations or weighing evidence has caused me to reevaluate what I believe I should be doing when I act as a child’s guardian. I start with an analysis of what the guardian is uniquely qualified to do and how the guardian should do these things. A guardian is uniquely situated to do four things: 1) meet (repeatedly if necessary) with the child to determine the child’s perception of his or her current living situation and wishes; 2) observe and document the conditions of the parties’ homes; 3) require the parties (repeatedly and in writing) to document and substantiate their positions regarding disputes they have over the child and the complaints they raise against each other; 4) determine and document the factual issues that the parties agree upon.

Almost all guardians meet with the child to determine the child’s perception of his or her current living situation and wishes. Few regularly do the other three things. Yet it is the guardian’s ability to document, in real time, living conditions and the parties’ disputes that makes the guardian most valuable to the trial judge in deciding custody. Further, because both parties have an incentive to cooperate with (rather than stonewall) the guardian, and because the guardian can obtain information directly from the parties, the guardian is often in the best position to document the facts that the parties agree upon.

The key to these three roles is documentation. For example, when doing a home study bring a camera. Attorneys repeatedly undermine a guardian’s observation of a party’s living condition by challenging the guardian’s recollection: contemporaneous photographs substantiate the guardian’s observation. Why report that a house was clean and the refrigerator was filled with organic produce (or report that a house was filthy and the refrigerator filled with malt liquor) when photographs can document the same thing? Let the judge see (and determine) whether a swimming pool is properly fenced in, whether the child’s video games are age appropriate or whether the child’s room is adequately furnished.

True, parties will often spruce up their home in anticipation of the guardian’s visit but even that fact is telling: unfit or unconcerned parents will frequently fail to spruce up their home and how the home is spruced up will often document what the parents value. Further, after the home study is done, the guardian can share the photos with all parties and their counsel. If the one party believes the other party has presented a highly inaccurate picture of the living conditions, a surprise home study can document the conditions in a random setting.

Documenting what the parties’ position is regarding contemporaneous issues and what facts the parties do not dispute requires the guardian to get the parties’ statements in writing. When the guardian’s report is filed with the oral representations of the parties, the guardian becomes subject to attack for not properly reporting what the parties said. Thankfully, with most litigants now having e-mail, this process is easily streamlined.

I begin each case by sending the parties a lengthy questionnaire. This questionnaire asks the parties basic questions regarding safety issues and asks for their position on various issues typical to custody cases. The questionnaire also asks the parties two important questions: 1) what should I ask the other party when I meet with him or her; and 2) what things should I be looking for when I do my home study of the other party. I do not arrange to interview either party until both parties have answered this questionnaire.

With both parties’ answers in hand, I can now know if there are safety issues I need to investigate and see what the parties agree upon. Often the parties will agree as to how much time each was spending with the child prior to the commencement of litigation and this fact is useful to report to the court. Often the answers to these questions will narrow the issues and set parameters for a final resolution. If the father answers that he wants visitation three days a week and mother answers that father should have visitation two days a week, I know that I need to investigate (and the court only needs to decide) visitation for one day a week.

Further once I have the dispute documented by each party, I can request the parties’ provide (or I can subpoena) additional information that might substantiate or undermine one parent’s claim. For example, if there is a dispute over who was picking the child up from school on Tuesdays I could ask the parties to provide me (or I could subpoena) the sign out records from the school. If there is a dispute over whether father watched the child on Wednesdays while mother had a girls night out, I could indicate my desire to review records that might show where mother spent her Wednesday evenings (such as credit card records or bar receipts). If there is a dispute over how often father attended pediatric appointments, I could obtain the pediatric records.

In drafting my report, I would use such information as follows:

A primary dispute in this case is how much time father should spend with the child. Father believes he should have three days a week with the child; mother believes he should only have two. See attached responses to guardian questionnaire. Prior to their separation, mother claims father would watch the children Tuesday evenings while she would do yoga and would typically spend Sunday afternoons with the children after church. Father adds that he often watched the children Wednesday (when he claims Mother would have a girl’s night out) and frequently cared for the children on Saturday afternoon. Mother disputes these claims. Mother’s credit card records, attached hereto, show frequent charges on Wednesdays at a local bar. Both parties acknowledge that mother was primarily responsible for taking the children to medical appointments but that father attended some of these appointments. The parties dispute how frequently father attended pediatric appointments (father indicates he attended half; mother indicated he attended few). The pediatric records note his attendance at approximately one-quarter of these appointments but the physician’s note indicates that she is inconsistent in logging parents’ attendance. The parties agree that mother attended all parent-teacher conferences while father attended approximately half of these functions.

Such a report does not rely upon inadmissible hearsay, does not determine credibility, and does not weigh evidence. It does not push (or even suggest) a resolution of the visitation dispute. It does, however, frame the issue for the court so that the court knows what is in dispute, knows the parties’ respective positions, and provides some information that might be useful in deciding the dispute.

When I interview each parent, I know what questions the other parent wants me to ask. I can either ask this question (and put the answer in my report) or make a decision not to ask a particular question (and be prepared to justify my decision in my report or cross examination). Similarly, when I do my home study, I can either note what the other party has asked me to observe or make a conscious decision that honoring the request is not appropriate (again, being prepared to justify my decision in my report or cross examination).

Once I have interviewed both parties and done both home studies, I immediately do the following: 1) provide the parties a summary of what each party told me during the interview; 2) provide the parties a summary of my impression of each home study; 3) provide both parties the photographs taken during each home study; 4) provide the parties the other’s response to my questionnaire; 5) ask the parties to suggest follow up investigation based upon what has been produced.

This sharing of information serves multiple purposes. Because I do not record the party interviews it gives both parties an opportunity to dispute my recollection of the interviews. If they dispute what I report, I ask them to clarify their view in writing. Doing this minimizes the parties’ ability to attack my report by attacking my recollection of the interview. Further, by sharing this information both parties can now suggest further areas for me to investigate and begin to prepare evidence showing that the other parties’ responses to my questions were inaccurate.

For example, if father has a criminal record but denies it in my questionnaire, mother will now be aware of this denial. She can ask me to obtain father’s criminal record (or do so herself). If mother notes that she is taking powerful prescription medications in her answers, father can ask me to investigate this issue. I can ask mother to provide me her prescription records (or subpoena them if necessary). If father’s home is atypically clean (or atypically filled with wholesome food) mother can ask me to do a surprise inspection. However, if after sharing all this information, neither party disputes my recollection of the interviews and neither party asks me to do further investigation, it will be difficult to attack my report based on allegations of an inadequate investigation or inaccurate recollection.

Because the guardian’s report cannot contain inadmissible hearsay and the final report cannot make custody recommendations, I structure my reports over specific disputes or areas of disagreement and provide all the (admissible) information I have on each area. For example, if there is a dispute over corporal punishment, my report might read as follows:

Mother seeks a restraint against third-parties exercising corporal discipline on their three year old son; father opposes this restraint. Mother reports the child coming home with bruises after visits with father. She reports that the child attributes this bruising to stepmother’s exercise of corporal punishment. In my interview of the child, the child reports that stepmother spanks him on the rear and arm when she is unhappy with his behavior. Father acknowledges stepmother spanks the child with his consent and he does not view her use of corporal punishment as excessive. Mother has provided photographs, attached, of the bruising on the rear and the arms; father disputes that these bruises stem from stepmother’s spankings and attributes them to the child’s rough play. The child is too young to provide reliable information on what caused this bruising.

Note that I have not included information from the stepmother because such information would be inadmissible hearsay.

Often where the guardian can be most useful is in informing the court what information the parties were unwilling to provide the guardian. For example:

Mother raises concerns regarding father’s use of prescription pain medications. Father is prescribed hydrocodone by his physician. A hair and urine test taken by father, attached hereto, indicates that the level of opiates in father’s system is consistent with his prescription and does not indicate abuse. However, I sought father’s permission to speak to his physician regarding how this prescription drug use might effect his parenting. A copy of the request and release is attached. Father has failed to execute this release.

Another example of where the guardian’s demand for written explanations can be quite helpful is in resolving the myriad visitation disputes that typically arise while a custody case proceeds through litigation. Take the common problem of investigating a dispute over whether and why a parent failed to allow or exercise visitation. Since the guardian was not there, the guardian will never be able to “know” what happened. Typically a guardian confronted with this will talk to both parties, talk to whatever other witnesses there might be and then, in the guardian’s report, the guardian would note everyone’s position and reach some conclusion. There are numerous problems with this approach: 1) the witnesses’ statements are hearsay; 2) the parties will claim that the guardian’s report is inaccurate in what they told the guardian; 3) the guardian is implicitly weighing the information if the report reaches any conclusions.

Except for disputes that involve safety concerns regarding the child (in which a thorough investigation is called for to protect the child) a better approach is to simply ask the parties to immediately document in writing their version of the dispute. Once you have both parties’ written explanations, provide each party both explanations and determine what additional follow up investigation is required. Knowing that they have to provide the guardian written explanations (and that these explanations may lead to follow up investigation), the parties will likely be cautious about being dishonest in their reporting and this increases the possibility of findings areas of agreement regarding the dispute. The explanations can lead to avenues for further follow-up questions or requests for documents. My report over a common visitation dispute might read as follows:

On January 3, 2009, there was a dispute regarding visitation. Mother was 15 minutes late to the 3:00 p.m. visitation exchange. The parties’ explanations of the dispute are attached as hereto. Father claims that mother failed to inform him that she was going to be late. Mother claims there was an accident on interstate 26 that caused her to be late and that she phoned father while in route to inform him of this. Mother has provided her cell phone record, attached hereto, noting a 2:30 p.m. phone call to father’s cell phone that she claims was her attempt to inform father that there was an accident on interstate 26 and she was going to be late. Father denies receiving this call.

Such reporting does not rely upon hearsay or require me to weigh evidence or make credibility determinations. It does not subject me to being impeached on a claim that I have inaccurately reported the parties’ positions. It provides the court information about the dispute and an ability to understand why each party believes the dispute arose. It prevents the parties from coming to trial and turning this dispute into a swearing contest or a trial by ambush.

Such reporting will not assist a lazy attorney. I have not determined who caused the communication problem, whether mother’s tardiness was justified, and how this dispute should factor into the court’s custody determination. The attorneys will have to use this report to prepare their client’s case and not rely upon this report to make their client’s case.

Patel and the private guardian ad litem statute (correctly, I believe) limited the role of the guardian to determine and resolve disputes but strengthened the guardian’s ability to investigate and report on these disputes. By forcing the parties to provide information and explanations of their disputes, the guardian can greatly assist the court while allowing the court to exercise its proper authority in weighing evidence, determining credibility, and deciding custody.

The limitation on making written custody recommendations and using inadmissible hearsay in my report creates a clear and certain trial strategy for the guardian: present the testimony of witnesses. In few cases in which I have been a guardian that have been set for trial since 2003, I have subpoenaed numerous witnesses (once more than both parties combined). While my report cannot indicate what these witnesses told me, my interviews indicate which witnesses the court should hear from. Typically I am subpoenaing witnesses who counsel the child or have significant supervision time with the child (teachers, coaches, day care providers, parents of the child’s friends). It is through their testimony, and not through a guardian’s oral opinion, that the guardian insures the best interests of the child are protected. A teacher’s testimony that a child is floundering while the custodial parent does nothing is more telling than any custody recommendation a guardian could make.

Finally, due to concerns I have regarding hearsay, I have begun asking older children for whom I am guardian (typically age seven or up) if they wish to testify or speak to the judge about their situation. Sometimes children want to be heard about their preferences and their views on both parent’s home situations. Sometimes a simple fact such as the child does not like the new school that was necessitated by a parent’s move or a child misses friends when they are at one parent’s home becomes much more powerful when it comes from the child’s own mouth. While the rules on allowing children to testify in their own custody cases are murky (and invest the trial judge with substantial discretion) determining whether the child wishes to be heard directly, which issues the child desires to be heard on, and preparing that child to speak powerfully before the judge are all tasks that guardians should be undertaking.

A great concern (and implicit tension) in calling witnesses to testify is that the guardian is frequently making the case for the pro se parent (or the parent who has a less-than-diligent attorney). Where a parent has a diligent attorney, information helpful to that parent’s case will generally be elicited in that parent’s case in chief. Meanwhile, the guardian appears to presenting the other’s sides case. This can make the guardian appear biased and can make the diligent attorney unhappy. Since most guardians rely upon attorneys to agree to their appointments, the system has created an economic incentive against guardian diligence. The solution to this tension is for judges to appoint guardians without attorney approval.

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[1]Statements of the parties are allowable as statements of party opponents. SCRE 801(d)(2). It is unclear whether the child’s statements are admissible but, as the child’s representative, it is unclear how a guardian can represent the child without reporting what the child says. Some other statements, typically of the child’s treating medical providers, fall within the hearsay exception. Most other witnesses’ statements do not.