4.1 The GAL Maintains an Attitude of Respect
The GAL shall approach all family members and parties with an attitude of respect and openness to hear their account of the relevant facts regardless of any allegations that have been made. The GAL shall be patient, courteous, and dignified in his or her interactions 8 with litigants, witnesses, attorneys, and others with whom the GAL deals in this official capacity.
Commentary
The GAL may limit the number of telephone calls and contacts made by a party or attorney as is reasonable given the particular circumstances. The GAL may seek assistance from the court on issues related to the GAL’ s safety or to address inappropriate conduct by a party related to the investigation. In such instances, a motion must be filed with the court with a copy sent to counsel of record and any pro se parties.
4.2 The GAL is Diligent and Adheres to Time Deadlines
The GAL shall adhere to all time frames set forth in the order of appointment as applicable.
Commentary
If the report is not filed on time, the Probation Office notifies the judge and seeks further instruction from the court. Probate and Family Court Standing Order 2-98. If the GAL needs more time to complete the report, the GAL shall file a motion with notice to counsel and pro se parties to extend the deadline prior to the date when it is due. The motion shall indicate the proposed due date for the report. The GAL shall complete the report even if a party declines to participate or an attorney indicates that the case may settle.
4.3 The GAL Maintains Safety
The GAL shall make every reasonable effort to ensure the safety of all parties and their children. To implement this requirement, the GAL shall:
- Arrange joint parent-child interviews, home visits, or observations of a party with the children only when such processes are safe.
- Arrange interview schedules so that parties do not come into contact during the interview process when domestic violence is alleged or identified as a possible issue.
- Inquires about and refrains from disclosing, directly or indirectly, residential, telephone, work, or other location information that a party has kept confidential for safety reasons.
- Refrain from recommending visitation or other arrangements that bring the parties into contact when an abuse prevention order is in effect, or when the investigator has reasonable cause to believe that such contact may be dangerous or harmful for either party or the child.
- Warn the party, the party’s attorney and contact police as appropriate if the GAL believes that a party or child is in danger of imminent physical harm from the other party in the case.
Commentary
To ensure the safety of the parties and their children, the GAL should screen for previously undisclosed safety issues in separate interviews with the partes early in the investigation. Depending on the circumstances, the other party, the child, the GAL, or others may be at risk if there are issues of mental illness, domestic violence, child abuse, or substance abuse. The GAL should attempt to gather and communicate information in ways that avoid harm to parties, the child or children, or others involved in the case. The GAL shall consider the safety of the parties and other family members when he or she makes recommendations and determines how the information he or she has collected will be reported to the court.
4.3.1 The GAL Files Mandatory “51A” Reports When Required and as Appropriate
In cases of suspected child maltreatment, many mental health professionals are required to file a “51A” report. G.L. c. 119, § 51A. However, a lawyer or mental health professional, who is not a mandated reporter, may still report suspected abuse or neglect as necessary if a child is at risk. If the GAL has reasonable cause to believe a child is in imminent danger, the GAL should report this information to the police department and should also report the information to the Court through an emergency motion for instructions with the required notice to counsel and pro se parties.
4.4 The GAL Shall Use a Process for Communication and Collection of Information that is Conducive to Disclosure of Information and Fair to the Parties
The GAL shall provide each party with a separate interview so that each party may speak with candor. The GAL encourages parties and their attorneys to provide additional relevant information and documents. The process for communications must be even-handed and provide each party with the opportunity to present relevant information and respond to relevant allegations by the opposing party. The GAL also affords a pro se party the same procedural protections that the GAL affords a party with an attorney.
4.4.1 The GAL Shall Conduct All Oral and Written Communications with Attorneys and Pro Se Parties in a Manner that Avoids the Question of Bias
The GAL shall send counsel of record and pro se parties copies of any motions and other documents filed by the GAL in court, except for the GAL report. If the GAL sends a substantive written communication to one counsel or a pro se party, the GAL shall send a copy of the communication to the opposing counsel or pro se party.
Commentary
A GAL’s written communications to one party or attorney about administrative or scheduling matters, such as arranging a time for an interview or signing 10 releases, are not substantive matters. While it is not required by any statute or rule, attorneys may agree to send copies of all written correspondence addressed to the guardian ad litem to the opposing counsel.
4.4.2 The GAL Arranges for a Qualified Interpreter if a Party or Child is Unable to Understand or Use the English language
The need for an interpreter goes beyond the courtroom if a party is not completely fluent or comfortable in using the English language. The party, child or child’s guardian should be interviewed to determine the communication system to be used and the party’s or child’s comfort with it. In the case of a deaf or hard-of-hearing person, this communication system could be oral, cued-speech, finger spelling, sign language, or a combination of all of them. People may prefer to use their native language. Using a child as an interpreter is not appropriate, and using relatives or friends may have a chilling effect on what is disclosed. If the child or a party has limited or no English language skills and the GAL does not speak the language, every effort should be made to ensure that only qualified interpreters are used. Any authorizations for release of information and other forms should be translated for such parties. Likewise, a party or child may have a need for a sign language interpreter.
Commentary
If a party does not supply a qualified interpreter, the GAL may file a motion in court for appointment of a qualified interpreter that includes a request that the Commonwealth pay for the interpreter’s services if a party is indigent, or that a party or parties who are not indigent pay for the interpreter. Counsel and pro se parties shall be given notice of the motion. If the GAL desires payment from or reimbursement from the Commonwealth for the cost of using an interpreter, the GAL must receive approval from the court before incurring the expense. Bias or incompetence of an interpreter can lead to omitted and inaccurate communications with the GAL. The interpreter should not have a conflict of interest or a relationship with a party or other person that will bias the interpretation. The Supreme Judicial Court has promulgated standards for court interpreter services and qualifications which are available on the internet at: Standards and Procedures of the Office of Language Access.
Certain cases may require that the GAL possess or utilize cross-cultural competence and expertise. For example, if the parents dispute whether a certain religious ritual was integral to a certain faith and whether the ritual should be performed on the child. The role of the interpreter, however, is to facilitate communication rather than serve as a substitute for an expert on a particular culture.
4.5 The GAL Answers Appropriate Questions about the GAL’s Credentials or Role
The GAL answers appropriate questions about the GAL’s education, training, experience, practice areas, professional affiliations, and the process of the GAL investigation.
Commentary
If requested by counsel or a pro se party, the GAL shall provide a copy of his or her curriculum vitae to said counsel or party. However, questions pertaining to the GAL’s personal life need not be answered.
4.6 The GAL Maintains Confidentiality
The information gathered by the GAL for the court is confidential. The GAL shall not disclose confidential and personally identifiable information about the parties, their children, or the services rendered by the GAL to a person who is not a party or counsel in the case, except as necessary to gather information to complete the investigation and report, or to perform responsibilities related to the order of appointment. This prohibition is permanent and applies to the GAL’s writings, lectures, or other media communications.
Commentary
If a GAL has questions regarding release of information pertaining to the parties, child, or the investigation and report, the GAL may file a motion for instructions with the court with notice to counsel and any pro se party.
4.6.1 The GAL Obtains Appropriate Release Forms or Court Orders before Obtaining Privileged and Confidential Information about the Parties and their Children
Many of the most common and relevant records that are subject to statutory privileges or other restrictions can be obtained with an appropriate authorization for release of the information or a court order.
- Department of Social Services (DSS) records. A party’s release form or court order is needed to access records. The GAL can obtain the DSS file with a release from a party but privileged information must be redacted. 10 C.M.R. § 12.09(l)-(3).
- Medical, health and hospital records. A party’s release form or court order is needed to access records. G.L. c. 111 § 70, § 70E(b); The Health Insurance Portability and Accountability Act of 1996, Pub. L. 104-19 1 (HIPAA).
- Psychotherapist records. A party’s release form or court order is needed to access records pertaining to an adult from a psychotherapist whose communications are privileged. G.L. c. 112, § 8GB; Commonwealth v. Bernard, 424 Mass. 32, 673 N.E.2d 1220 (1996). G.L. c. 233, § 20B.
- Social Worker records. A party’s release form or court order is needed to access records. G.L. c. 112, §§ 135A, 135B.
- Alcohol and drug abuse programs records. A party’s release form and/or court order may be needed to access records. 42 U.S.C. §§ l 175, 290 dd-3.
- School records. If a party has shared or sole legal custody, he or she may authorize release of records, except for a parent or party whose access is restricted by a Chapter 209A or other court order. G.L. c. 71, § 34H; G.L. c. 208, § 31.
- Criminal Offender Record Information (CORI and CARl). The GAL can most easily review these records with a court order through the Probation Department, or request the records through the Criminal History Systems Board.
- Prior GAL reports, Probation Office or Court Clinic reports involving the parties. The GAL must file a motion with the court with notice to the parties to access these records.
- Domestic Violence or Sexual Assault Victim-Counselor records. Confidential communications cannot be disclosed in civil actions by court order and are not discoverable without the victim’s prior consent. G. L. c. 233, §§ 20J, 20K.
- Victim program locations. Locations of battered women’s shelters, domestic violence, and rape crisis programs may not be disclosed by court order, or otherwise to the GAL. G. L. c. 233, §§ 20J, 20K.
- Mediator Records. Communications made during mediation with a mediator are privileged and the court cannot order disclosure. G.L. c. 233, § 23C.
- Alternative dispute resolution information. The Probation Department of the Probate and Family Court may release the information to the GAL if the court orders release of the information or the parties consent to the release of information.
The Health Insurance Portability and Accountability Act of 1996, Pub. L. 104-19 1 (HIPAA) requires that health providers may only release personal health information if the release signed by a party complies with the provisions of the federal law. Even if no statutory privilege applies to the information sought by the GAL, the provider or keeper of other records (e.g. unlicensed support group leaders, batterer intervention programs) may also request a written release from their client. In some instances, the order for appointment of the GAL will provide that the GAL is permitted to access certain records and information; this obviates the need for a party’s authorization for release of the information.
Commentary
Some third parties or providers may be unaware of protections that apply to records or confidential information relating to the parties or the children. The GAL, however, shall only review the information after appropriate releases or court orders for access to the information have been provided to the holder of the information. If a privilege is not properly waived, a judge may allow a motion to strike reference to the information from the GAL report.
4.6.2 The GAL Recognizes that Children’s Rights to Confidentiality are Different than Other Parties’ Rights to Confidentiality
The GAL shall obtain authorizations for release of information pertaining to children from the children’s parents or legal guardians. A parent, however, cannot waive a child’s psychotherapy or social worker privilege. If the counseling information is needed but protected by a privilege, the GAL or counsel must return to the appointing judge and present a motion for appointment of another guardian ad litem to investigate whether waiver of the child’s psychotherapy privilege is in the child’s best interest. Adoption of Diane, 400 Mass. 196, 201 (1987); G.L. c. 233, § 20B. The motion should indicate the scope of the information sought and the GAL’s reason for seeking the information. Counsel and pro se parties must have notice of the motion. If the court later waives the privilege, the GAL may access the information.
Commentary
A parent or parents with legal custody of the child, or a party granted legal guardianship of the child, may authorize access to most other records of the child. If a parent or parents refuse to authorize release of information that is important to the investigation, the GAL may file a motion for access to the information with notice to counsel and pro se parties.