Handling a guardian ad litem who’s gone (too) rogue (February 2013)

Material for South Carolina Bar’s annual guardian ad litem training

Twenty years experience shows that there’s some validity to Robert Rosen’s jaundiced view of guardians ad litem in private custody cases, best expressed by the title of one of his articles for South Carolina Lawyer: “Getting Rid of the GAL: How to Save Your Client from Those Expensive, Unnecessary Officious Intermeddlers.”  As Rosen’s article notes:

I have rarely been involved in a custody case in which the GAL contributed anything except to the cost. That contribution is usually significant. This is not to say that guardians cannot be useful. Of course, they can be, and there are undoubtedly some cases which guardians have helped settle or have given useful advice. But, the same would be true in a wreck case or a medical malpractice case. If there were a guardian involved, he or she could also give some useful advice to both the plaintiff and the defendant. In general, GALs merely add another lawyer with another hourly rate to talk to the same witnesses, sit at the same depositions and present an opinion which is usually as valuable (as lacking in value) as the opinion of the lawyer for the wife or the lawyer for the High School. Many times their opinions are worthless. GALs add nothing to the litigation except another batch of subjective opinions based on their own childhood experiences, their own marriage(s) and children and their own view of the world. Family court lawyers admit all this privately to each other, while they pander to and praise GALs who are on their side….

It is, therefore, my unshakeable belief that avoiding a guardian ad litem is an important service to your client because: (1) it saves money; (2) does away with another wild card in the case; (3) is one less person to have to listen to, accommodate, humor and deal with; and (4) and most importantly, the GAL can always recommend against your client, which is usually fatal, as judges generally place entirely too much value on their “impartial” recommendations

While I agree with many of Rosen’s criticisms of guardians, I believe there are some tasks a guardian is uniquely qualified and useful to perform in child custody cases.  Unlike the parents’ attorneys or the family court judge, a guardian can go into both parents’ homes multiple times to observe the living situation and to observe parent-child interaction.  A guardian can ask the parents to answer questions about the incidents and disputes that come up in most custody cases and expect honest answers (and note a party’s failure or refusal to answer).  A guardian can meet with the children multiple times and develop an understanding of their concerns and wishes.  A guardian can observe the child with third-party care givers and provide (assumably unbiased) observations on the child’s level of comfort with such care givers.

Some guardians do excellent work investigating and reporting on important custody issues that the court would otherwise have imprecise or inaccurate knowledge.  However some guardians do slipshod work: developing a clear dislike of one party that colors every aspect of their investigation and report or failing to investigate important issues that they are in the best position to analyze

We can think of such guardians as going rogue.  Their reports will be neither impartial nor balanced but the court rarely has a good basis to discount or ignore them.  Further, especially when working with a guardian for the first time or with an inexperienced guardian, it is impossible to predict when a guardian will do a thorough, impartial job and when a guardian will “go rogue.”  Complaining about a guardian’s unfavorable testimony or report at the time of trial is often treated by the court as a symptom of the party’s unhappiness with the guardian rather than as the guardian’s failure to be thorough and impartial.  Thus one needs to employ strategies that demonstrate a guardian’s (potential) inadequacies at the beginning of the case rather than waiting until the end of the case to develop the attack.

Sometimes when I am the guardian the only communication I initially receive from a parent’s attorney is the client’s contact information and the paperwork that client has filed with the court.  More typically I will get a list of witnesses the attorney wants me to talk to.  Rarely will I get a listing of the actual investigation the attorney and parent would like me to undertake.  The witness list will sometimes include folks like teachers, coaches, counselors and care providers but often it’s a list of friends and family.  Everyone–the judges, the attorneys, the guardian–assumes such friends and family will say favorable things about the parent and if one wants the judge to know that these friends and family like the client the way to do that is to call them as witnesses at trial.  Most guardians neither want or need an investigation to determine that a parent’s friends and family think well of him or her.

A witness-based investigation request isn’t completely worthless but it’s not very useful and cannot be used to subject a guardian to later claims of incompetence, incompleteness or bias.  If I am asked why I didn’t talk to a number of a party’s friends or family members, I can easily defend the attack by answering:

I wanted to be careful with the parties’ resources by not spending time investigating undisputed issues.  I read their affidavits.  I saw they liked their friend/family member.  From their affidavits, they did not appear to have spent a significant amount of time with the child(ren) [I often interview friends and family members on request if their affidavit shows they spent substantial time with the child(ren)] and I didn’t see that they had much else to add.

The key to being able to show a guardian’s investigation is incomplete or biased is to provide the guardian clear written guidelines at the beginning of the case of what issues one’s client would like the guardian to investigate.  I call this an “issue based,” as opposed to “witness based,” investigation.  Obviously the issues one will ask the guardian to investigate are those that one expects the investigation will uncover information favorable to the client and unfavorable to the opposing party.  In asking a guardian to investigate a particular issue I might ask the guardian to do certain tasks or talk to certain witnesses.

For example, in a case in which the opposing party claims that my client interferes in his relationship with their child because she simply doesn’t respect the role of fathers, I might ask the guardian to talk to the father of one of her other children.  The portion of my issue-based investigation request might read as follows:

One of the issues in this case is whether my client is unduly resistant to the other parent’s relationship with the child.  My client has another child with another father and she and that father get along well.   I would ask you to meet with and speak to this father, and, if possible, speak to her other child at that father’s house.  We would ask your report to include an analysis of her co-parenting with this other father.

Another example is a custody case in which my client is seeking joint or sole custody in part based on a claim that he has successfully co-parented an older child with a different parent.  My request to the guardian might read as follows:

One of the reasons my client believes he should get joint or primary physical custody is his excellent track record of parenting another, older child.  We would ask you to meet with and speak to the mother of this child and to their child.  We would ask your report to include an analysis of his track record as a co-parent.

It is important to conclude the written communication to the guardian with the following language:

I am assuming that you agree the investigation I am asking you to undertake is relevant to understanding and advocating the child(ren)’s best interests and I therefore will expect you to undertake the investigation I propose.  If there is any part of this requested investigation that you are uncomfortable undertaking or believe is not useful to understanding the child(ren)’s best interests, please indicate in writing which portions of this investigation you are unwilling to undertake so that my client and I can determine whether further action is necessary.  If I do not hear back from you I will assume that you have no issue undertaking the investigation I propose and will do so.

The reason for concluding with such language is that it pushes the guardian towards either undertaking the investigation you propose or subjecting the guardian to a cross examination that will undermine the guardian’s report and testimony.  If the guardian indicates he or she is unwilling to undertake a portion of the investigation one proposes, one can then move to remove the guardian due to his or her unwillingness to undertake a thorough investigation (this assumes that the investigation the guardian is unwilling to undertake is not excessive and is material to understanding the child(ren)’s best interests).  If the guardian simply fails to investigate one of the important enumerated issues, one can use this written communication to the guardian to develop an effective cross examination:

Q. You received this communication from me early in the case asking you to investigation the following issues:

Q. That communication asked you to inform me in writing if you were unwilling to do this

Q. You never informed me in writing that you were unwilling to do this

Q. You would agree that this issue is important to understanding the best interests of the children [assuming this is the case, you really don’t care how the guardian answers this: if the guardian admits it, it strengthens your position; if the guardian denies it, the guardian appears inept]

Q. You have failed to investigate this issue

Q. Your report fails to address this issue

Q. My request further indicates the steps I suggested you undertake to investigate this issue

Q. You didn’t undertake any of these steps

Q. Your investigation is incomplete [again, you don’t really care how the guardian answers this: an admission strengthens your position; a denial makes the guardian appear inept]

Q. In failing to investigate an issue important to my client, your investigation is biased against my client

Q. In failing to inform me in writing that you were not going to undertake this investigation, you prevented me from taking action to remedy this problem while the case was ongoing

Q. This failure again prejudiced my client

There are some cases in which a guardian may investigate an issue but do a very haphazard or one-sided job of investigating or reporting.  Assuming that there is minimal evidence supporting the guardian’s conclusion and substantial evidence undermining it, an effective cross examination script might be as follows:

Q. I asked you to investigate the following issue:

Q. You investigated that issue and found as follows:

Q. You’ve heard the testimony and seen the evidence elicited so far at trial.

Q. You would acknowledge that the only testimony and evidence supporting your position is as follows:

Q. You would acknowledge the following testimony and evidence contradicts your position:

Q. Wouldn’t you agree that the greater weight of the evidence is contrary to your report [an admission is unlikely but extremely helpful; a denial subjects the guardian to inferences of incompetence or bias]

At the time of a contested trial, one party is routinely unhappy with the guardian’s report and testimony, and the court expects that party to attack the guardian.  This cross examination script enables an attorney to demonstrate that the client’s request to discount the guardian’s recommendations is not based on an unfavorable report but based on an incomplete, incompetent or biased investigation.  A judge is much more likely to discount the guardian’s testimony and report if one can demonstrate incompetence, incompleteness or bias.

The best way to undermine a guardian who’s “gone rogue” is start with an understanding of what you believe the guardian needs to investigate that would support your client’s position.  This involves both highlighting the client’s strengths (and the opposing party’s weaknesses) and undermining the client’s weaknesses (and the opposing party’s strengths).  Then develop a record that will lead to a conclusion of guardian bias or incompetence if the guardian either fails to undertake this investigation or does so inadequately.  Doing so enables one to effectively attack the guardian without it being perceived of as yet another attorney who is merely unhappy with the guardian because the guardian is not supporting the client’s position.

This strategy cannot undermine every unfavorable guardian: there’s many cases in which the guardian’s investigation accurately uncovers a number of problems with one’s own client or simply determines the other parent has more strengths.  Other cases might involve an honest difference of opinion as to what the actual facts show.  However, for a guardian who simply is one sided and refuses to investigate or acknowledge one’s client’s good points, or the opposing party’s bad points, this strategy is the most effective one I’ve seen.