An orange peace sign on a navy blue background. With guardian ad litem services written to the left in white textIn Massachusetts, a Guardian Ad Litem, or “next friend,” is someone appointed by the Court for a specific purpose, usually when a case involves minor or incapacitated individuals.

Beth Aarons is a trained GAL who provides services through the court and is also available to be hired “off-the-list”.

What types of cases require a Guardian Ad Litem?

A Guardian Ad Litem may be appointed in family law or probate matters, most commonly for one of three purposes: to evaluate, investigate, or provide substituted judgment.

In family law, a Guardian Ad Litem is typically appointed in high-conflict cases where parents cannot agree on a parenting plan.  For this type of case, a Guardian Ad Litem investigator may be appointed, who is usually an attorney.

In cases where there are allegations that one or both parents have specific issues which may impair their ability to provide safe, effective parenting, such as substance abuse, the Court may appoint a Guardian Ad Litem evaluator, who is usually a mental health professional, to evaluate the impact of the issue on parenting ability.

For probate matters, a Guardian Ad Litem may be appointed to investigate and review the financial accounts on behalf of an incapacitated or minor individual.

If the Court has reason to believe that a party or other interested person in a case may be incapacitated or impaired to the extent that he or she cannot provide informed consent for an aspect of the case, a Guardian Ad Litem/Next Friend may be appointed to legally “stand in” the case with that individual to provide substituted judgment, which is to make the decisions the Guardian Ad Litem/Next Friend believes the individual would make if he or she had full capacity and informed consent.

What are the Guardian Ad Litem E and F lists and what is the difference between them?

If parties in a contested case involving custody and/or parenting plan issues need a Guardian Ad Litem and do not provide the Court with the name of an agreed-upon Guardian Ad Litem to be appointed in their case, the Massachusetts Probate and Family Courts maintain lists of individuals who may be appointed.  The E “Evaluator” list is comprised of mostly mental health professionals for purposes of conducting an evaluation, usually of a specific issue and its impact on parenting ability.  The F “Investigator” list is comprised of mostly attorneys for purposes of conducting an investigation to gather information relevant to custody and/or parenting plan issues.

What process does a Guardian Ad Litem use in a Massachusetts custody case?

The Court order appointing the Guardian Ad Litem should provide details as to the specific scope of the Guardian Ad Litem role for a particular case.  The Court would assign a Guardian Ad Litem for a custody case from the E or F lists, depending on the specific issues of the case.  The Guardian Ad Litem conducts the evaluation (E list) or investigation (F list) according to the standards of practice put in place by the Probate and Family Court.

The Guardian Ad Litem (E or F lists) will typically interview the parties, children, professionals involved with the family, and perhaps some family members, friends, or witnesses to specific relevant events, and if relevant, conduct home visits and/or observe the children with each parent.  If psychological testing is warranted, a Guardian Ad Litem qualified to conduct the testing may do so, or have another, independent individual conduct the testing and provide the Guardian Ad Litem with the results, which may then be considered for purposes of the report.

The Guardian Ad Litem is usually required to submit a written report to the Court, after which his or her role in the case is completed.  Some exceptions are if the matter goes to trial, the Guardian Ad Litem may be called to testify, or if a long period of time passes between the initial Guardian Ad Litem report and the anticipated adjudication of the case, the Court may appoint the same Guardian Ad Litem to provide an update in the case.

When can Guardians Ad Litem provide recommendations in their reports?

Guardians Ad Litem may only provide recommendations in their reports if specifically ordered by the Court in the Order of Appointment, so it depends on the language in the order.

What are the limitations of the Guardian Ad Litem’s role?

The Guardian Ad Litem only has the authority to evaluate, investigate, or provide substituted judgment for the scope of the issue in question for a defined period of time.  The Guardian Ad Litem is a neutral, so cannot accept any appointment where there is a conflict of interest with anyone involved in the case.  If the Guardian Ad Litem is an attorney, he or she cannot provide legal advice to anyone in the case.  If the Guardian Ad Litem is a mental health professional, he or she cannot provide counseling or therapy to anyone involved in the case.  Some Guardians Ad Litem are also mandated reporters of abuse or neglect.

What is a Guardian Ad Litem for waiver of privilege?

In Massachusetts, a minor child does not have the automatic right to waive his or her own patient-psychotherapist privilege.  When one or both parents of the child wish to access the child’s therapeutic records or speak with the child’s psychotherapy provider regarding the child’s issues, or if they wish for the Guardian Ad Litem in their contested matter (“primary Guardian ad Litem”) to be able to speak to the child’s psychotherapist, they must petition the Court to appoint a separate Guardian Ad Litem for Waiver of Privilege, and the Guardian Ad Litem is appointed for the narrow purpose of investigating the issue of whether the child’s patient-psychotherapist privilege should be waived.

Do the findings of a Guardian Ad Litem for waiver of privilege automatically go into effect once the report is filed?

It depends.  Some judges will issue the appointing order with language specifying that the determination of waiver be implemented without further Court involvement; other judges may require a hearing once the Guardian Ad Litem’s report is filed.

How long does a Guardian Ad Litem custody investigation or evaluation take?

The primary Guardian Ad Litem assigned to a custody investigation or evaluation usually has ninety days from the date of appointment until the report is due.  This time frame may be shortened or enlarged depending on the specific circumstances of the case, availability of individuals the Guardian Ad Litem needs to speak with, availability of relevant records the Guardian Ad Litem needs to review, scope of the investigation or evaluation, or other relevant factors.

If a Guardian Ad Litem for waiver of privilege also becomes involved in the case because the primary Guardian Ad Litem or one of the parties wishes to access the child’s privileged psychotherapy records, the Guardian Ad Litem for waiver of privilege typically has a very short report deadline of perhaps 2-4 weeks, because if the privilege is waived, the primary Guardian Ad Litem needs time to interview the therapist and/or review the records before the report is due.

Why would a Guardian Ad Litem be appointed when none was requested by the parties?

A Guardian Ad Litem may be appointed by the Court, even if none was requested by the parties, if the judge believes the Guardian Ad Litem’s involvement will be helpful or necessary to gather the information relating to the children’s best interests and/or determine parenting ability, as may be needed to make a determination regarding custody or parenting plan.

What happens when individuals refuse to participate in the Guardian Ad Litem investigation?

The Guardian Ad Litem will make reasonable attempts to contact the parties and any other individuals whom the Guardian Ad Litem believes may have relevant information.  Occasionally, a party or another person with relevant information may decline to speak with the Guardian Ad Litem.  Attempts to reach the individual and the individual’s failure to respond are usually noted in the report.  Sometimes the Guardian Ad Litem can obtain the same or similar information from other sources.