8.1 The GAL Asks the Parties about Key Issues which Might Warrant Specialized Attention
As part of the comprehensive evaluation, the GAL gathers a background history of each party designed to screen for specialty concerns (see 9.1E). The GAL is also attentive to allegations raised by all parties. The GAL should phrase questions about the specialized topics in nonjudgmental language, and ask them in multiple ways. This affords the parties the greatest opportunity to answer openly and accurately.
8.2 The GAL Considers Whether the GAL is Competent to Evaluate Questions that Require Specialized Expertise
The GAL assesses his or her competence to address the specialty issues that are present in the case. The GAL makes this assessment at the outset of the case, and throughout the case.
If the GAL is not competent to evaluate the specialized questions, the GAL considers:
- Referring the specialized assessment component of the comprehensive GAL evaluation to a competent mental health professional with specialized expertise,
- Seeking consultation and/or supervision from a professional with specialized expertise,
- Withdrawing from the case because the specialized issue warrants that a person with specialized expertise conduct the comprehensive GAL evaluation.
Commentary
The GAL also considers the level of attention required to appropriately address the concerns or allegations. In making decisions about whether to refer or seek consultation with a person with specialized expertise, the GAL takes reasonable steps to ensure that the professional to whom the referral is made is competent as per standard 8.2 and does not have a conflict of interest or role conflict as per 1.3 A or 1.4. Finally, the GAL considers the issues of cost, inefficiency, and delay in assigning such assessments to other professionals.
8.3 The GAL Shall be Competent to Evaluate Specialized Topics Within a Forensic Context
- The GAL or designee must have the education or training, knowledge and experience necessary to evaluate a specialty topic within the forensic context.
- The GAL or designee must be knowledgeable about any relevant laws, legal standards or rules particular to specialty topics.
- The GAL or designee must be aware of any relevant standards of practice relevant to the evaluation of specialty topics. These include the Massachusetts Standards on Substance Abuse by the Justices of the Supreme Judicial Court in collaboration with the Massachusetts Trial Court (1998) and the Standards on Judicial Practice, Abuse Prevention Guidelines by the Administrative Office of the Trial Court (2000) at:
- The GAL or designee must be knowledgeable about ways that specialty topics might present in the forensic context.
- The GAL must be able to access and interpret collateral sources relevant to each specialty topic.
- The GAL or designee must maintain a current knowledge of the literature and critical issues in specialty topics in the forensic context.
8.4 The GAL Incorporates the GAL’s Conclusions from the Specialty Areas with all other Data Gathered in the Evaluation to Complete a Functional Assessment of Parenting as it Relates to the Forensic Questions to be Addressed
A. Substance abuse and Mental Illness
Conclusions about a party related to his/her substance abuse, mental illness, are not dispositive on the question of parenting capacity. The applicable case law states that a determination that one party has or had an active substance abuse problem or mental illness does not constitute unfitness, in and of itself. (See, for example, Adoption of Katharine, 674 N.E. 2d 256 (Mass. App.Ct. (1997)).
B. Domestic violence
Conclusions that a party has been a victim of domestic violence are not dispositive of parenting capacity. Conclusions that a party has been the perpetrator of domestic violence are considered direct indicia of parenting capacity, but do not predetermine the answer to the forensic question (e.g. the specifics of a custody/visitation plan). Some conclusions by the GAL about domestic violence may lead to findings by the Court which trigger the requirements of the custodial presumption in favor of custody to the non perpetrating parent. (G.L. c.208, § 31a)
C. Child Abuse
Conclusions that a party has perpetrated abuse against a child are direct indicia of parenting capacity. As above, however, such conclusions do not dictate the answer to the forensic question to be addressed.
Commentary
The GAL recognizes that an adequate assessment of any of these specialized topics involves consideration of coexisting issues that may complicate the resolution of the problem, or mitigate the importance of the problem. For example, resolving a substance dependence problem does not necessarily resolve the other mental health problems, nor does it automatically improve parenting. On the other side, a mentally ill parent may have a support and resource network which allows adequate caretaking of the children even when flagrantly ill or incapacitated.
8.5 In Cases Involving but not Limited to Domestic Violence, Substance Abuse, Child Abuse and Mental Illness, the GAL Should Identify the Types of Supportive Services Believed Necessary to Successfully Implement a Custody and Access Plan
Examples
Such resources may include: substance abuse assessment and treatment, mental health evaluation and treatment, sexual abuse or certified batterers’ treatment; supervised visitation; counseling; parenting education; educational assessment for the child(ren); medication assessment; recreational or social services; housing or public benefits advocacy; regular payment of court ordered child support; DSS provided in-home services.
Commentary
Standard VII of the Massachusetts Substance Abuse Standards promulgated by the Supreme Judicial Court and the Trial Court requires prompt screening to alert the court to the possible need for an immediate substance abuse assessment or treatment program. The Substance Abuse Standards depend to some extent on resources that are not yet fully available to the Court. This may limit the GAL’s ability to perform the tasks set out in the standards. It is nonetheless important that the GAL be aware of the standards and consider which elements the GAL has the resources to perform.
8.6 In Cases Where it is Appropriate that a Party’s Access to Children Proceeds in Stages, the GAL may Suggest a Process for Monitoring Such Access
In some cases involving domestic violence, child abuse, substance abuse or mental illness, it may be appropriate that access to the child on the part of the “visiting” party proceed in stages. When appropriate, the GAL may suggest, a process for monitoring a plan built on access increasing in stages.
Commentary
The Massachusetts Substance Abuse Standards require a monitoring plan in cases where a party’s substance abuse problem is a factor in behavior related to the case. Specifically, Standard XII requires that the Court monitor compliance and Standard XIII requires the Court to implement strategies to prevent relapse. (But see commentary to 8.5 above).
Planning for shifts in access requires many considerations including the recognition that predicting behavior over lengthy time frames has serious potential for inaccuracy. The following is a noninclusive list of considerations:
- Whether a parent can comply with the recommendations;
- How likely is it that compliance with recommended interventions will translate into changes related to parenting?;
- How important it is that the child have access to the parent even if the parent is noncompliant?;
- What conditions need to be required of the parent without the problem (e.g. substance abuse, mental illness, etc.) in order for a child to better benefit from contact with the parent with the problem?