After the GAL accepts the appointment, he or she promptly schedules initial investigatory contacts with each of the parties and their attorneys if they are represented.
Commentary
If a party has an attorney, the GAL should first make contact with the attorney. The GAL may find it helpful to send a letter of introduction to counsel and pro se parties outlining the investigative process. The GAL should use additional means of communication, however, if a party’s primary language is not English, or there are literacy or other barriers impacting written communication. The GAL can determine more easily if a party understands what is communicated in a face-to-face interview.
5.1 The GAL Provides an Explanation of the GAL’s Role and a Lamb-type Warning at the Commencement of the Investigation
The GAL must explain the GAL’s role and the purpose of the investigation to the parties. The GAL shall inform the parties how the information gathered by the GAL will be used. The GAL must provide a “Lamb warning” that explains there are no “off the record” discussions and any information collected by the GAL may appear in the GAL report, be disclosed in court or to the other party, Commonwealth v. Lamb, 1 Mass. App. Ct. 530 (1973), or otherwise disclosed as required or permitted by law. As appropriate based on the child’s level of maturity, the GAL should provide a similar explanation of the investigative process and a Lamb warning to a child, but modified to reflect the child’s age and level of understanding. If the GAL interviews other witnesses, they also must receive a Lamb warning.
Commentary
To ensure a person understands the Lamb warning, the GAL should ask the person to summarize it for the GAL. The parties or witnesses should be informed that while they are encouraged to provide information, they may decline to answer a question and have an attorney present during any interview. Increasingly, parties represent themselves in court. Therefore, the GAL should avoid use of professional jargon or legalese that a party may not understand. The GAL should strive to explain things in simple language and terms as appropriate so that a party with a limited educational background or language ability can better understand what the GAL is communicating.
5.2 The GAL Inquires if the Parties have Relevant Safety Concerns
The GAL shall inquire at the outset of the investigation about any safety risks related to the investigation for either party, the child, or others because of any party’s mental illness, substance abuse, domestic violence, child abuse, or history of violence against others. The GAL should attempt to conduct the investigation in such a manner as appropriate to avoid likely harm to the child, a party, the GAL, or others.
5.3 The GAL Explains the Limits on Confidentiality and Complies with Legal and Ethical Standards Governing Disclosure of Privileged Communications
The GAL shall obtain information or review records after appropriate authorizations for release of information are executed or the court orders release of the information. The GAL shall respect the parties’ and their children’s right to confidentiality. Before obtaining an authorization for release of records or other information from a party, the GAL should inform the party how the information will be used. The GAL should also disclose that any information obtained by the GAL could appear in the GAL report, be disclosed to the other party, put into evidence during court proceedings or depositions, or disclosed to others as necessary to complete the investigation, discovery, or trial of the case. The authorization for release of information form given to a party by the GAL shall include but is not limited to who the information is sought from and the duration of the authorization of the release. A party should also be informed that he or she has a right to seek legal advice before signing a release and may decline to sign an authorization for release of information. A party may direct that all release forms be sent directly to counsel of record. If a party consents to release of information, the GAL should use forms for release of information that comply with applicable laws and that are acceptable to providers. 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 form complies with the provisions of the federal law.
Commentary
The GAL should not seek confidential information unless it is necessary. If a party objects to release of certain information, the GAL may file a motion to obtain this information. G.L. c. 233, § 20B; G.L. c. 112, § 135B; Commonwealth v. Bernard, 424 Mass. 32 (1996). A parent cannot consent to release of a child’s psychotherapy information. See Section 4.9. 2.