THE BENEFITS OF HAVING A GUARDIAN AD LITEM INVESTIGATION IN YOUR CUSTODY CASE

When parents are embroiled in a custody battle in the Probate and Family Court, it can be a lengthy and costly battle, both emotionally costly and financially costly.  In these types of cases, parents are typically entrenched in opposite positions, which can’t be resolved without court intervention.  There are many ways to address custody disputes through the Probate and Family Court, but by far, the most common way is to have a Guardian ad Litem (also known as a GAL) appointed to the case to investigate issues relating to custody and parenting time.  Oftentimes, many parents are reluctant to have a GAL appointed to the case, because it is an added cost for each parent, typically in the thousands of dollars.  However, there are benefits of having a GAL appointed to investigate custody and the parenting plan.  Here are some advantages:

1. The GAL has the time and resources to conduct the investigation. 

As many people know, the Probate and Family Court is often understaffed and backlogged.  Most Probate and Family Court judges have hundreds – if not thousands – of cases on their docket.  That leaves judges little time to devote to any single case, and oftentimes custody cases need a lot of time and attention.  The reality is that the judge don’t have the time that is needed to devote to these types of cases.

A Guardian ad Litem, however, is a private family law attorney or mental health professional who has specialized training in family forensics.  GAL’s usually have a much smaller caseload than judges, which affords a GAL the time necessary to conduct an investigation.  Most GAL investigations take, at a minimum, 20 hours to conduct the investigation, and usually takes a lot more time than 20 hours once the investigation is completed and the GAL’s report is filed with the Court.  This is time that Probate and Family Court judges just don’t have.

As part of the investigation, the GAL doesn’t just speak with the parents, but oftentimes speaks with the children’s doctors, teachers, daycare providers, and even extended family and close friends.  The GAL also has the right to review any relevant documentation pertaining to custody, parenting time, or the children in general.  These are people that the judge may or may not hear from if the cases ever went to trial.  On the other hand, the GAL can speak to all of these people and provide a summary back to the Court after speaking with all of these people, also known as collaterals.  The GAL has the ability to get to know the family in a way that a judge would never have the time or resources to do. 

After the GAL has spoken with all relevant people and reviewed the necessary documents, he/she will then draft a report to be submitted to the court, which usually incudes recommendations as to the custody, the parenting plan, as well as other recommendations for services that may benefit the family.  GAL’s are typically more up to date as to what programs, services, and resources are available to families than judges are, and the GAL can include these resources in his/her report.  These are programs, services, an resources that the judge may or may not know about. 

2. The GAL’s report can help settle the case

Almost all Guardians ad Litem in Massachusetts are respected by the Probate and Family Court judges, and because of this, judges often give substantial deference to the GAL’s report and recommendations, unless the recommendations just are not supported by the facts obtained in the investigation, which rarely happens.  Most family law attorneys know that judges will give this deference to the GAL’s investigation and reports, so lawyers can then assist their clients in how to proceed forward with the custody case in light of the GAL’s recommendations.  This frequently causes custody cases to settle, because parents will agree to implement the GAL’s recommendations, rather than waiting for a judge to quite possibly order the same recommendations after trial. 

3. A GAL can help resolve the case faster

When parents are locked into a custody dispute, if they do not come to a settlement, and then they also do not engage a Guardian ad Litem, the case typically will have to go to trial.  Because judges have such a large caseload, it can take several months to over a year for a trial to be scheduled, and that is after the case has already been litigated by means of motions, Pre-Trial Conferences, and Status Conferences, which can take an additional 6 months to a year.   That means it can take almost 2 years to litigate a custody case if it goes to trial, and even after that it can take months before a trial judgment is issued by the judge. 

Furthermore, at the trial, the judge may or may not hear from the people (doctors, teachers, daycare providers, extended family and friends) that a GAL would normally speak to as witnesses.  This means that the information that a GAL would otherwise gather in his/her report may not be presented at trial if parents choose not to engage a GAL. 

On the other hand, when there is a GAL appointed to a custody case, that GAL report can facilitate settlement.  Or, if the case goes to trial, having the GAL testify at trial can streamline any “collaterals” that may otherwise testify at trial, making the trial go longer.