1.1 The GAL Shall Gather and Report Factual Data to the Court, and, when Competent to do so, Offer Clinical Opinions
The role of the Category E GAL evaluator is to gather and report factual information, use clinical knowledge to interpret that data, and formulate clinical opinions to assist the court in making custody, visitation, or other decisions related to the welfare of a child. Unless the appointing judge specifies otherwise, the GAL’s role it limited to gathering and evaluating information and reporting it to the court. The GAL may include recommendations in the report if the order of the court authorizes inclusion of such recommendations. The GAL shall not offer clinical assessment or conclusions unless the GAL has the requisite expertise to offer such opinions.
Commentary
The court, not the GAL, decides legal issues and ultimately makes credibility determinations and factual findings when facts are in dispute. The GAL reports on facts and avoids providing legal conclusions or legal analysis.
A. The GAL Shall Investigate and Evaluate Only those Areas Specified by the Court
If the GAL sees a need to broaden the scope of the evaluation, the GAL shall seek authority from the court before broadening the evaluation. Copies of any and all motions filed by a GAL must be sent to counsel of record and any pro se parties.
Commentary
This standard does not preclude a GAL from investigating and evaluating factual issues that were not identified at the time of the appointment if they are relevant to the legal issues identified in the appointment.
1.2 The GAL’s Role Requires Participation in the Trial and Discovery
After conducting the evaluation and writing a report, the GAL shall be available for trial and for possible deposition. If the parties do not reach an agreement about their case, the GAL may be subpoenaed by a party or the court may request that the GAL be present for trial.
Commentary
Absent a protective order of the court, the GAL shall appear for deposition as required under the applicable rules and statutes as part of his or her responsibilities as the GAL.
1.3 The GAL Serves as an Impartial Investigator, Evaluator and Reporter
The GAL is an impartial investigator, evaluator and reporter in all cases.
A. The GAL Shall Decline or Withdraw from the Appointment if a Conflict of Interest Exists, or the GAL has Information or Personal Relationships that Will Bias the Process or Outcome of the Evaluation.
If the GAL has any prior or existing direct or indirect relationships with parties, their families, material witnesses, or someone else connected with the family, the GAL must consider whether the GAL’s impartiality is compromised as a result of these relationships. The GAL shall decline the appointment if:
- The GAL has or had a dating or intimate relationship with any counsel of record, or a close personal relationship with any counsel of record that will impact the GAL’s ability to be unbiased;
- The GAL provided counseling or other services to a party or members of the family, or a material witness;
- The GAL, by virtue of a professional relationship with a colleague (e.g. members of the same practice, members of a peer review/case review/professional development group, supervisory/consulting relationship), has or has had access to information about the parties, children, material witnesses, that would otherwise not be available to the GAL in the normal course of the evaluation;
- The GAL was married to or had a personal relationship with a party, a member of the party’s family, a material witness, or another person closely aligned to a party;
- The GAL has or had pecuniary interests or financial involvement with a party, the party’s spouse or nonmarital partner, a material witness, counsel for a party or other person closely aligned to a party;
- The GAL’ s concerns about reprisal or adverse personal consequences if the report is unfavorable to a party will impede the GAL’s candor or ability to be impartial and render an unbiased report;
- The GAL is aware of other circumstances that will impede the GAL’s candor or ability to be impartial and render an unbiased report.
Commentary
If a GAL is aware of circumstances that indicate that the GAL may have a conflict of interest or other circumstances that may make it inappropriate for the GAL to serve as the evaluator, the GAL shall disclose the information to counsel of record and any pro se parties. The GAL also shall immediately file a motion for instructions from the appointing judge as appropriate with notice to counsel and any pro se parties.
B. The GAL Engages in Nondiscriminatory Practices
The GAL shall not engage in conduct manifesting bias or prejudice based on race, gender, religion, ethnicity, disability, age, socioeconomic status, marital status or sexual orientation against a party, witness, counsel, or other persons involved in the case.
Commentary
The GAL must be aware of how societal and personal biases may interfere with an objective evaluation and recommendations. The GAL recognizes and strives to overcome any such biases. If the GAL is not able to do so, he or she must promptly decline or withdraw from the appointment. If the GAL considers factors related to race, gender, religion, ethnicity, disability, age, sexual orientation, marital status or socioeconomic status concerning a party in the evaluation or report, the GAL must explain the relevance of these factors to the issues before the court.
C. The GAL Evaluator Shall Not Act as an Attorney or Legal Advocate for the Child.
The GAL is an objective and evenhanded reporter. The GAL shall not give legal advice or act as advocate or attorney for the child. In some cases, the child’s wishes may be contrary to the child’s best interests.
Commentary
A GAL is not a party to the case. A GAL is a witness to the case. The GAL shall not file motions except as related to performance of the GAL’s responsibilities and as provided in these standards.
D. The GAL Does Not Give Legal Advice or Act as Either Party’s Legal Advocate.
The GAL refrains from giving legal advice to parties including but not limited to advice about how the law applies to the facts of their case, how to obtain or modify court orders, or how to draft legal documents. The GAL refers parties to their attorneys for legal advice. If a party is pro se, the GAL suggests that the party seek legal advice from an attorney.
Commentary
Many courts have “Lawyer of the Day” programs for indigent parties as well as family law facilitators and many bar associations have lawyerreferral panels. Nonprofit “legal aid” (a/k/a “legal services”) programs may be able to provide free legal advice and representation to low income or indigent
parties.
The GAL shall refrain from giving a party legal advice that he or she should drop a restraining order so that the parties may meet together with the GAL or engage in mediation pertaining to the restraining order. See G.L. c. 209A, § 3.
1.4 The GAL Avoids Dual or Multiple Roles
The GAL shall not provide legal, mental health, parent coordination, mediation or other professional services to any party or the child during the evaluation or pendency of the case.
Commentary
To provide such services during the Evaluation or pendency of the case is inconsistent with the GAL’s role as an impartial evaluator and reporter. The GAL, however, may provide information to the parties, the court, and counsel about community resources available to the parties, such as but not limited to substance abuse treatment programs or other professional services that may be helpful to the parties and their children.
1.5 The GAL Adheres to Applicable Ethical and Professional Standards
The GAL shall adhere to the ethical guidelines and standards for his or her profession to the extent that these guidelines apply.
Commentary
If the mental health professional serving as a GAL is unable to perform his or her evaluative responsibilities because of a conflict with applicable professional standards, the GAL shall file a motion to withdraw as the GAL with notice to counsel and any pro se parties.