How I Handle GAL Appointments
June 26, 2014 § 3 Comments
One of the things I swore that I would address as soon as I took the bench was the disorganized state of GAL appointments in our district.
At the time — this was before GAL certification was required — there was no uniformity in qualifications, requirements or expectations. Most appointees had no clue what they were supposed to do. Written reports were seldom filed. Months of inaction would be compounded by months of inattention. A GAL-appointment order typically said no more than that the individual was appointed. No deadlines, no specification of what duties were required. No delineation of the GAL’s role.
So I crafted an order that spelled out exactly what the GAL’s role would be, and what the GAL was authorized to do. I set a deadline for a written report, and always set a conference with the attorneys shortly afterward, to see whether or not the report will settle the case.
One feature of my approach is that I appoint the GAl to serve as a special master per MRCP 53. Your judge may reject that approach, but it has worked well here.
Below is a generic form of the order. I am providing it to you in case you might find it useful in your own cases if your chancellor lets you prepare the order (I insist on doing my own). Here it is:
GUARDIAN AD LITEM
This civil action came before the court on the motion of plaintiff for appointment of a guardian ad litem. The court now finds that appointment of a qualified guardian ad litem is required to protect the best interests of the minor child named herein, due to allegations of neglect, pursuant to Section 93-5-23, Mississippi Code 1972, as amended.
Now, therefore, it is
ORDERED AND ADJUDGED as follows:
1. Jane Doe, Esq., is hereby appointed as guardian ad litem to serve as a special master under Rule 53, MRCP, to investigate and report to the court as to the interests of the minor children: Stu Smith, born May 23, 2012; Sue Smith, born August 21, 2005; and Lou Smith, born February 7, 2009. The Court finds that the said Jane Doe has completed the requisite training and is otherwise qualified, without interest adverse to the minor children herein. The Court has adequately instructed the said Jane Doe on the proper performance of her duties.
2. The guardian ad litem is hereby ordered and directed to investigate, make recommendations to the Court and enter reports as to the best interests of the minor children.
3. The guardian ad litem is hereby authorized and empowered to review and copy any and all records, including, but not limited to, educational, medical, psychological and psychiatric records, financial and banking records of every kind and nature, any protective service reports and/or contacts, pertaining to the aforesaid minor children, all of which information shall be maintained as confidential by the guardian ad litem, except upon further order of this court. A certified copy of this Order shall be presented by the guardian ad litem to all third parties from whom information is requested, and shall serve as authority to release such information to the guardian ad litem.
4. The guardian ad litem is expressly authorized to communicate directly with each party in this case, and shall not be required to communicate through counsel. The guardian ad litem is directed to send a copy of all correspondence with each party simultaneously to that party’s counsel of record.
5. Each party is hereby ordered and directed to provide the guardian ad litem, in writing, within five (5) days of the date of this Order, with the following information:
a. A brief statement of the party’s position on the issues of child custody, placement and support;
b. A copy of each document in the party’s possession upon which the party relies to support the party’s position on child custody, placement and support, including, but not limited to, psychological or other professional reports or records;
c. A list of all witnesses, including, but not limited to, medical and mental health professionals, who have information supporting the party’s position on child custody, placement and support, providing for each the name, address and telephone number;
d. A list of the party’s employers for the preceding five (5) years, together with a statement of the work performed, hours and days regularly worked, and gross and net pay.
e. A list of all counsellors, psychiatrists, psychologists and other mental health professionals with whom the party and/or the minor children have consulted within the past five (5) years;
f. A list of each street address at which the party has resided within the past five (5) years;
g. The names, addresses and telephone numbers of three (3) references, other than relatives, with whom the guardian ad litem may discuss the party’s parenting ability and relationship with the minor children.
6. Each party is hereby ordered and directed to cooperate fully with the guardian ad litem and to provide the guardian ad litem with truthful, accurate information promptly when requested to do so. This is a continuing order for disclosure, and the court may refuse to allow the introduction into evidence of information that was not provided to the guardian ad litem contrary to this Order, unless good cause is shown.
7. The guardian ad litem is hereby specifically vested with all powers set out in MRCP 53(d) and (e).
8. The guardian ad litem is hereby ordered and directed to file a written report with the Chancery Clerk of _______________ County, Mississippi, including recommendations as to the best interest of the minor children with respect to custody. The report shall be filed with the clerk and simultaneously served on all parties on or before the _____ day of _________________, 2014. The guardian ad litem’s report shall address at least the following items, subject to any conditions imposed by the court:
a. Interviews with the minor children, specifying where and when conducted, and under what conditions;
b. Interviews with parents;
c. Interviews with siblings;
d. Interviews with school or day care officials and personnel;
e. Interviews with social workers;
f. Interviews with church and community contacts;
g. Copies of all pertinent documents and reports that are not confidential;
h. A review of the physical evidence;
i. Review of financial status, if the children has income or any interest in property;
j. Narrative of personal observations of the children alone, with parents, and at school or in other contexts outside the home.
IT IS FURTHER ORDERED AND ADJUDGED that, pursuant to MRCP 53(g)(2), counsel for the parties, or any unrepresented party, are directed to serve any written objections to the guardian ad litem’s report on the guardian ad litem and counsel opposite within ten (10) days of service of the guardian ad litem’s report.
IT IS FURTHER ORDERED AND ADJUDGED that the guardian ad litem’s report, along with any written objections timely filed shall be admitted into evidence and considered by the court on hearing of this matter.
IT IS FURTHER ORDERED AND ADJUDGED that the plaintiff, as moving party, is hereby ordered to deposit with the court the sum of $1,500 on or before the 30th day of June, 2014, as a deposit against the fees incurred for the guardian ad litem’s services. Allocation of the guardian ad litem fees between the parties shall be adjudicated in the final judgment in this case.
IT IS FURTHER ORDERED AND ADJUDGED that this matter is set for a status conference with the court on the _____ day of ____________________, 2014, at ______, ___.m., and all counsel and parties are ordered to be and appear before the Chancery Court of Lauderdale County, Mississippi, in the Lauderdale County Court House in Meridian, Mississippi, for a conference on said date at said time, or as soon thereafter as the matter may be taken up.
SO ORDERED AND ADJUDGED this the day _____ day of ________________, 2014.
Notice that the report shall be introduced. That feature puts the burden on the judge to spell out if there are parts of it that the judge did not rely on or find to have probative weight, such as hearsay. And it does not preclude objections. But it does allow for the GAL’s conclusions and recommedations to be put before the court.
As they say about the speed limit in Italy, this is merely a suggestion. You may find parts of it fit your situation exactly, while other parts just won’t work.
Tagged: guardian ad litem