1.1 The GAL Shall Gather and Report Factual Data to the Court
The role of the Category F GAL investigator is to gather and report factual information that will 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 investigator’s role is limited to gathering and reporting information to the court. The GAL may include recommendations in the report if the order of the court authorizes inclusion of such recommendations.
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.
Inappropriate analysis: “This case presents a legal question of first impression as to whether the mother is entitled to relief from judgment. The national trend is to deny relief in this situation and in a recent case, the SJC hinted that it also would reject a claim based on weak facts such as those in this case.”
A. The GAL Investigator is Not a Clinical Evaluator and Shall Not Perform Clinical Assessments or other Clinical Functions
The GAL should provide descriptive information without clinical interpretations, even if the GAL is a mental health professional.
Example of a descriptive statement: “Mr. Jones said that he has felt very sad since his separation with his wife; he said he has trouble sleeping, has no appetite, and has missed numerous days of work because he is too depressed to get up.”
Example of improper clinical interpretation: “Mr. Jones appears to be clinically depressed.”
B. The GAL Shall Investigate Only those Areas Specified by the Court
If the GAL sees a need to broaden the scope of the investigation, the GAL shall seek authority from the court before broadening the investigation. For example, a GAL appointed to investigate the issue of visitation discovers that the major conflict between the parties involves a parent’s plan to remove the child out of state. The GAL must file a motion with the court before expanding the investigation to encompass fact gathering relating to the removal issue. 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 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 investigation 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 Shall Serve as an Impartial Investigator and Reporter
The GAL is an impartial investigator 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 Investigation
If the GAL has any prior or existing direct or indirect relationships with parties, their families, their attorneys, 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 or the GAL’s law firm previously advised or acted as counsel for a party, child, or other person closely aligned to a party, including but not limited to a party’s spouse, non-marital partner, or a material witness;
- 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 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 non-marital 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 investigator, 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 investigation 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 investigation or report, the GAL must explain the relevance of these factors to the issues before the court.
C. The GAL Investigator Shall Not Act as an Attorney or Legal Advocate for the Child
The GAL is an objective and even-handed 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. A GAL shall not engage in direct or cross examinations of witnesses or conduct depositions. 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 Represent Parties or Give Them Legal Advice
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 and many bar associations have lawyer-referral panels. Non-profit “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, mediation or other professional services to any party or the child during the investigation or pendency of the case.
Commentary
To provide such services during the investigation or pendency of the case is inconsistent with the GAL’s role as an impartial investigator 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. An attorney must remain in good standing as a member of the bar and adhere to the Rules of Professional Conduct that apply to lawyers. See Mass. R. S. Ct. Rule 3:07. Likewise, mental health professionals must adhere to ethical and professional standards that govern their respective professions.
Commentary
There is no attorney-client confidentiality when an attorney serves as a GAL investigator because the investigator does not represent any party. If an attorney or mental health professional serving as a GAL is unable to perform his or her investigatory responsibilities because of a conflict with applicable professional standards, the GAL shall promptly file a motion to withdraw as the GAL with notice to counsel and any pro se parties.