QUESTION Describe the guardian ad litem program in Massachusetts family courts.

SUMMARY

Family courts in Massachusetts have a guardian ad litem (GAL) program that hires trained specialists to investigate and write reports for the court to use in determining what is in the best interest of children. The GAL (known as Category F GAL investigators) does not have to be a lawyer and serves only in an investigative capacity. GAL investigators must perform only the duties that are within the scope of the court order of appointment. They are prohibited from advocating on the child's behalf.

The Massachusetts family courts have adopted GAL Practice Standards. The standards include a checklist of information frequently gathered during investigations and a suggested outline for court reports.

GAL investigators' fees are set by the trial court's administrative office.

MASSACHUSETTS FAMILY COURTS' GAL PROGRAM

GAL Practice Standards

On January 24, 2005, the Massachusetts Probate and Family Court Department adopted its Standards for Category F Guardian Ad Litem Investigators. 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.

The GAL 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 such conflicts 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 GAL Practice Standards also include a checklist of information frequently gathered during investigations and a suggested outline for court reports.

An electronic version of the GAL Practice Standards is available at:

http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/galstandards012405.pdf

GAL Appointment

In Massachusetts, GALs are appointed by probate and family court judges from among those who have experience representing parties in custody and visitation cases. GALs investigate facts in cases involving the care and custody of minor children and other matters that implicate children's interests or rights. A GAL is generally appointed 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 parent-child relationship,

5. paternity,

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).

GAL Duties

GALs are expressly prohibited from acting as a child's advocate. Their role is limited to gathering and reporting factual information that will help the court to make custody, visitation, and other decisions affecting a child's welfare. A GAL's duties are case-specific. The GAL performs duties that are within the scope of the court order of appointment. GALs may make recommendations only if the court expressly authorizes them to do so.

GAL Compensation

GAL investigators' fees are set by the probate or family court's administrative office. The practice standards indicate that if the court order is unclear about who will pay for GAL services, the GAL must file a motion for clarification by the appointing judge. The GAL must give notice to counsel and any self-represented party. If the order specifies that the state will compensate the GAL, he or she cannot charge additional fees to the parties. The GAL must file the report in a timely fashion whether or not he or she has been compensated.

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