August 8, 2007
GUARDIAN AD LITEM PROGRAMS: CONNECTICUT AND MASSACHUSETTS
By: Susan Price, Principal Legislative Analyst
You asked for a comparison of guardian ad litem programs in Connecticut and Massachusetts family courts.
Family courts in Connecticut and Massachusetts have guardian ad litem (GAL) programs that hire trained specialists to investigate and write reports for the court to use in determining what is in the best interest of children. Although neither state requires that GALs be lawyers, Connecticut law makes the child's attorney also his or her GAL. It requires the court to appoint a separate GAL only when a conflict arises between the attorney's ethical obligation to advocate for the child's legal interests and the GAL's obligation to advocate in the child's best interest (CGS § 46b-129a(2)). Massachusetts GALs serve only in the investigative capacity and are expressly prohibited from advocating on the child's behalf.
Family courts in both states have adopted practice standards for GALs that include explanatory commentaries; copies are enclosed. Electronic versions are at http://www.ct.gov/ccpa/cwp/view.asp?a=2587&q=315078 and http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/galstandards012405.pdf, respectively.
Connecticut's Commission on Child Protection adopted Standards of Practice for Attorneys and Guardians Ad Litem Representing Children in Child Protection Cases on November 16, 2006. They are an adaptation of model standards developed by the American Bar Association and adopted by the National Association of Counsel for Children on April 12, 1999. Their stated purpose is to help attorneys and GALs prioritize duties and manage their caseloads in a way that will benefit each child they are appointed to represent.
The standards apply when a lawyer is appointed for a child under age 18 in any action based on (1) a petition for child protection; (2) a request to change legal custody, visitation, or guardianship based on abuse and neglect charges; or (3) termination of parental rights. All of the standards apply to lawyers appointed in the dual capacity of attorney/GAL. The standards recognize that, even in the dual role, the lawyer's primary duty is to protect the child client's legal rights. Section V of the standards applies when an attorney or other qualified individual is appointed to act solely as GAL and represent the child's best interests.
Under the standards, a child's best interests are a measure of his or her well-being, including physical, emotional, psychological, intellectual, and moral needs. They encompass the child's interests in sustained growth, development, and well-being and in continuity and stability in his or her environment (Standards of Practice, Sec. I.B)).
The standards provide GALs guidance for determining the child's best interest and advocating for it. They require the GAL to meet with the child and establish and maintain a trusting relationship. The GAL must explain in a developmentally appropriate manner that their conversations are not confidential and should visit with the child before court hearings and when notified about emergencies or significant events in the child's life.
The standards recognize that the non-confidential nature of the GAL's relationship with the child may affect the nature of that relationship, resulting in the need for a GAL's fact-finding to be as, or even more, thorough than the child's attorney's.
Investigations. The standards contain the following non-exclusive list of actions that GALs should take to determine the child's best interests:
1. reviewing the child's social services, psychiatric, psychological, drug and alcohol, medical, law enforcement, school, an other relevant records;
2. reviewing court files of the child and siblings, case narratives, and records of the Department of Children and Family (DCF) and other service providers;
3. contacting lawyers for other parties and GALs or court-appointed special advocates for background information;
4. contacting and meeting with the child's parents, legal guardians, or other caretakers (after obtaining permission from their attorneys);
5. obtaining necessary authorizations for the release of confidential information;
6. interviewing individuals involved with the child, including school personnel, DCF social workers, foster parents and other caretakers, relatives, coaches, family friends, clergy, mental health professionals, physicians, law enforcement officers, and other potential witnesses;
7. reviewing relevant photographs, video or audio tapes, and other evidence;
8. attending treatment, placement, and administrative hearings and other relevant proceedings involving legal issues, such as school placement planning team meetings concerning the child's special education needs; and
9. discussing non-privileged matters with the child's attorney.
Advocating for the Child's Best Interest. A major portion of the GAL's responsibility to advocate for the child's best interests involves the formulation of the child's permanency plan. The standards mandate that GALs must, among other things, participate in treatment plan meetings and DCF's administrative case reviews and maintain regular contact with
the child's DCF caseworker. They must take steps needed to ensure that the child receives appropriate services and ensure that the permanency plan addresses not only the child's permanency goal but also:
1. the child's developmental, medical, emotional, educational, and independent living needs; and
2. assessments and support to enhance parental capacity to meet the particular needs of the child.
The standards specify that recommendations for services should be based on all information available to the GAL and should include consideration of the services necessary to ensure permanency, healthy growth and development, safety, and well-being. Permanency includes minimizing disruptions in the child's life while in state care; ensuring trauma-informed treatment, decision-making, and transition planning; identifying the ultimate permanency goal that serves the child's best interest; and advocating through all appropriate channels to achieve that goal.
To ensure that the best interests of the child are protected and served, GALs may testify about their findings and recommendations; request court hearings or administrative proceedings; and file pleadings, motions, and requests.
The Massachusetts Probate and Family Court Department adopted its Standards for Category F Guardian Ad Litem Investigators on January 24, 2005. Their stated purposes are to (1) promote uniformity, consistency, and accountability in GAL investigations; (2) improve custody, visitation, and other outcomes for children; and (3) promote respect for the rights of parties and their children, including their safety.
In Massachusetts, GALs (known as Category F GAL investigators) are appointed by Probate and Family Court judges to investigate facts in cases that raise questions about:
1. custody and visitation,
2. a custodial parent's request to move with the child out-of-state,
3. changes in circumstances that might warrant modification of a court order,
4. the existence of a parental-child relationship,
6. termination of parental rights, or
7. other matters that implicate the interests or rights of children
(Mass. GL c. 215 § 56A; GL c 208 § 16).
Contrasting with Connecticut's system, Massachusetts GALs are expressly prohibited from acting as a child's advocate. Their role is limited to gathering and reporting factual information that will assist the court in making custody, visitation, and other decisions affecting a child's welfare. Each GAL's duties are case-specific and limited to the areas identified in the court's appointment order. GALs may make recommendations only if the court expressly authorizes them to do so.
The practice standards generally focus on the mechanics of conducting fair and balanced factual investigations and filing detailed reports that provide accurate information about the parties and their children. Topics covered include:
1. identifying conflicts of interest and withdrawing from or refusing cases when they arise;
2. avoiding investigatory methods that could place the child or any party at risk (for example, avoiding joint interviews with parents when domestic violence issues may be present);
3. treating all parties evenhandedly and with respect;
4. obtaining qualified translators for children or parties not proficient in English;
5. complying with laws governing release of confidential information (e.g., obtaining valid releases before requesting information from medical or school files);
6. meeting with the child and observing him or her with the parents, if appropriate;
7. explaining to the child, in a developmentally appropriate manner, and to all parties and witnesses that any information they provide can be included in the GAL's report and disclosed to any party; and
8. seeking court permission to expand the scope of the investigation when necessary.
The standards also include a checklist of information frequently gathered during investigations and a suggested outline for court reports.