Understanding the Ins and Outs of a GAL Investigation and What to Expect

Not every divorce or custody case has a Guardian ad Litem appointed, but these types of investigations are rather common in cases where there is high-conflict between the parties, allegations of abuse being made about one or both parents, mental health related issues, a relocation request, or a number of other complex issues that warrants one. If you’re thinking about whether you need a Guardian ad Litem or one has been appointed to your case and you have no idea what to expect, this article will help in understanding what to expect with a GAL Investigation.

How Does a Guardian ad Litem get appointed?

A Guardian ad Litem (often referred to as a “GAL” – say each letter ‘G.A.L.’ rather than sounding out the word ‘gal’ for correct pronunciation) can be agreed upon by the parties or requested by one party. Either way, the Judge will need to approve the request and appoint a GAL. You cannot just hire one without the Court issuing an Order for it.

What type of GAL do I need?

There are three main types of GAL’s: Category E, Category F, or a Guardian to Assert or Waive a Child’s Therapeutic Privilege. Category E and F GALs both conduct a complete investigation, which typically involves talking to both parties, the children, and a number of collaterals (such as the children’s teachers, DCF social workers, or third parties suggested by each parent). The main difference between the two categories is that a Category E is allowed to evaluate and interpret the facts uncovered during the investigation and formulate clinical opinions because they are required to be a licensed mental health professional while a Category F is only supposed to report the facts rather than be able to draw conclusions or report their opinion based on those facts. A Judge may ask for Recommendations to be included by either type of GAL, and if so, the GAL will usually include a reasoning section to explain why they believe their recommendations are in the best interest of the children.

Although it may seem like an extra burden and expense, if your child is in therapy and anyone wants the GAL to speak to the therapist,a special type of GAL must be appointed to first Assert or Waive a Child’s Therapeutic Privilege. This is because a child has a right to confidentiality in what they say to their therapist, and that needs to be taken into consideration before their private matters are allowed to be discussed in court. If the special or limited GAL waives privilege, then the regular GAL can speak to the child’s therapist. If they assert the child’s privilege, then the regular GAL cannot ask for confidential information from the child’s therapist.

How much does a GAL investigation cost?

Just as with lawyers, the overall cost can vary greatly. In limited cases where the parties are pro se (where they each represent themselves) and are lower income, it’s possible that the state might cover the cost; however, the majority of GAL appointments are paid for privately by the parties. Each GAL’s hourly rate is going to vary based on their experience and location The overall time that the investigation and report will take heavily depends on how cooperative everyone whom the GAL needs to speak to is with getting meetings scheduled (which dictates how much it will cost). We have seen some investigations be completed within 30 – 40 hours while others can take over a year to complete. Just as with everything, the less organized you are, the more costly it will likely be as the GAL will need to take additional time to get through everything.

Generally, the Judge will order both parties to split the cost of the GAL; however, if one party makes substantially more than the other, sometimes that party might need to front the costs, subject to reallocation. This simply means that the person who didn’t contribute at the beginning, might still be responsible for some share of the cost later on in the case.

Preparing for the GAL Investigation

Often, the GAL will send you a questionnaire to fill out before they meet with you. This form is very important. Please make sure you go over it with your lawyer before you send it to the GAL though! This is an opportunity to put your best foot forward and help the GAL understand the issues in your case in a way that can help you get the recommendation you’re looking for. Do not rush through this form or guess at answers. Just as in every family court matter, credibility is everything and how you say things is sometimes more important than what you say.

Most people have a lot of documentation that they want to show the GAL to help prove their side or show that the other side is not being truthful. In our firm, we encourage the use of a GAL Binder, which is similar to how we prepare a Trial Binder. This is a way to organize all the documents that you want to provide to the GAL in a manner that makes it easy for the GAL to find and review the documents as well as understand why the document is important. We will also create a summary of our client’s argument that refers to each document within the GAL Binder as appropriate.

For example, if we are making the argument that the child is often sent to school without lunch or snack during the other parent’s parenting time and the teacher has sent a letter home addressing this issue, we would refer to that document at the end of the paragraph by including “(See Exhibit A – Letter from School)” so the GAL can see that there is actual evidence to back up our statement and so the GAL is able to easily locate the letter and reference it later when they write their report.

This takes A LOT of work to prepare, but when you’re putting the money into the investigation, you want to make sure you do it correct rather than leaving it to chance or hoping you remember to tell the GAL everything during your meeting (everyone always forgets to say something important!)

Any documentation that is provided to the GAL must also be provided to the other side. This is why it is very important that your attorney reviews anything you have that you want to provide to the GAL. We have seen the situation time and time again where a person thinks they have great evidence to show the GAL, but when we look at it, we can see how the opposing party could actually use that evidence in a way that could hurt the person presenting it more than help them.

Most people want to tell the GAL every single thing wrong with their ex during their meeting. Work with your attorney to ensure that you remain focused on the most important issues rather than every little detail. Although it may drive you crazy that your ex is constantly 5 minutes late dropping the kids off, if your focus is on that rather than more important factors, the GAL might interpret that as you being overly critical and lack understanding rather than seeing that your ex doesn’t respect your time. You may have an hour or two with the GAL during your initial meeting. Make every minute count by staying focused on the biggest and most important problems you want addressed.

Another thing that surprises people is when a GAL asks them to tell them what is “good” about the other parent. Now, your natural and immediate response might be to reply, “Nothing!” but that would not be your best response. This question is designed to see how supportive you are of the children’s relationship with the other parent – Are you able to see past the contested issues and still see good? Spend some time thinking about this before your meeting so you are prepared if asked. Try focusing on a neutral trait or think back to a time where things were good. For example: “He’s very focused and driven in his career” or “At the beginning of our relationship, he was so much fun to be with.” With careful planning, you may even be able to emphasize the behavior you’d like to see changed within this response. For example, “When he’s sober, he is a great and attentive Dad” or “He is extremely social and is one of those people who can get you to believe everything he says immediately so you trust him quickly, and as long as on you’re on his good side, he feels like your best friend.” See what we did there?

Who Gets to Meet with the GAL First?

Just as with filing a Complaint at Court, many people believe it is most important for them to ‘go first’ when meeting with the GAL. The belief is that, by going first, they set the stage and the GAL will believe what they say rather than what the other side is saying.

GALs understand that there are usually going to be vastly different sides of a story told to them. More important than going first is simply putting your best foot forward during your meeting with the GAL and being prepared and organized. This will help you stay focused so you can get the important points out that you want to make sure you address as well as feel less anxious. Work with your lawyer on creating an outline of what you want to go over and how to explain tough situations or events or facts that might not necessarily be in your favor.

Usually, to help remain neutral, the GAL will meet first with the Plaintiff in the case. However, if scheduling conflicts arise, it’s not uncommon for the GAL to simply meet with the first person that has availability within the GAL’s schedule. Just always remember to tell the GAL that if the other side makes any statements that you haven’t addressed with them already, you would like the chance to be able to respond to any allegations before the GAL finishes their report.

The Home Meeting

The GAL will typically meet with you and/or the children in your home at least once. Your home does not have to be spotless, but do make sure that your home is clean, orderly, and kid-friendly prior to the meeting. The GAL will use this time to observe how your child acts in your home and with you.

One of the factors in a custody case is how the parties encourage the child to have a relationship with the other parent. We encourage our clients to keep a photo of the child and their other parent in their room. This not only usually does truly help the child feel like it’s okay to still love both their parents even when they separate, the GAL will often see this as a very positive act.

If the GAL is meeting at your house while your child is getting home from school, make sure you put a snack out for your child, go through their backpack and see what homework they might have, and keep up your regular routine despite the GAL being there. It’s not uncommon for kids to act out a bit or get overly excited because someone they do not know is in their home, so do not be afraid to reign your child in either if it is appropriate to do so.

If you have any pets, make sure you check with the GAL about any allergies they might have and whether it’s okay for the pets to wander around the house during the meeting or whether you should contain them to a single room while the GAL is there. If anyone else is going to be at your home when the GAL meets with you, make sure you inform the GAL of that ahead of time. This is not the time for a new significant other or a nosey grandparent to make an appearance though as you want the focus to be on your story rather than a surprise guest who might change the tone or agenda of the meeting.

What will the GAL Say to my Child?

The GAL will likely meet with your child privately if the child is agreeable and old enough. The GAL will explain why they are there and what they do. Initially, the GAL will likely ask questions or try to play with your child in a way to get your child to feel comfortable with them. Different kids react very differently; some might need a lot of time to warm up while others immediately start talking about everything. Usually, the GAL tries to keep the meeting positive without asking questions in a way that could lead your child to answering in a particular way.

Often, the opening questions will involve asking about school, their friends, what they like to do, and having the child tell them about their family members. Then the GAL might move into more fact gathering questions, such as asking what they like to do with each parent, what they like best about each parent, what their routines might look like with each parent, who brings them to school or helps them with homework, or other similar questions. There may be questions about what the child has witnessed during the parents’ conversations or whether either parent has said anything they don’t like about the other parent.

The GAL might also ask questions to determine whether either party is trying to coach the children. Questions like, “What did your parents tell you about why you are meeting with me?” or “What did your parents tell you to remember to tell me?” or “Is there anything either of your parents told you not to tell me?” will help the GAL figure out whether what a child is saying is actually their own thoughts or influenced by one or both parents.

Usually, a GAL is not going to ask a child directly who they want to live with because a child should never feel that burden. However, the GAL may ask questions like, “If you could make any changes with how things are right now, what would you change?” or “Is there anything you would like to me to put in my report to tell the Judge?” The GAL is generally careful to not ask questions in a way that could make a child feel like they are or could be hurting one of their parents.

Once the meeting is over, although you’re really going to want to ask your child what they talked about, do not do this. Sometimes the GAL will meet with a child more than twice, and it’s likely they’re going to ask what the parents said to them after their last meeting. Don’t fall in that trap no matter how tempting it is.

If the GAL meets with the children at one parents’ house, they almost always will also meet the children at the other parent’s home as well. This not only allows the GAL to use the first meeting to build rapport with the child and the second to ask the fact-finding questions once the child is more comfortable with them, but also allows the GAL to see how the children interact with each parent individually.

What Should I Tell My Child About the GAL?

If you’re stressed out about your divorce or custody case, try to take a second to imagine how your child is likely feeling. Although children should never be in the midst of a family law case, by the time a GAL is being appointed, the child has likely already been put in that position. The best thing to do is be honest with your child while explaining the GAL’s role in language they can understand.

That being said, this does not mean blaming the other parent in any way for the GAL being involved, telling the child that they are going to decide who they live with, or making the process seem scary or overwhelming for them. You could tell your child that, because the Court cares about making sure that the changes taking place are what’s best for them, someone is going to come talk to them about everything as well. Assure your child that they should be open and honest because the GAL wants to hear what they have to say, but do NOT tell your child what they should or shouldn’t say.

If you want to take all precautions, simply ask the GAL directly how they suggest you tell your child about their meeting. This way, you do exactly as the GAL instructs you and it cannot be used against you.

What is a Collateral and Who Should I Pick?

A collateral is a third-party whom a parent would like the GAL to interview. The goal of choosing a collateral is to have someone who can provide first-hand knowledge of the situation to the GAL that supports what you are looking for as the ideal outcome.

For example, if the GAL is investigating domestic violence that took place between you and your ex, a good example of a collateral that could help you would be someone who either directly saw arguments between you and your ex while he was acting aggressively or saw you with injuries or bruises after an altercation with your ex. However, if you provide a collateral who can only repeat what you’ve told them without being able to say they’ve seen anything first hand, that is not going to be as helpful to you. That is not to say the second example would necessarily be a bad choice, but you typically have a very small number of collaterals to name, so it is extremely important to speak with your attorney before naming your collaterals to ensure that you’re putting your best case forward with information that will actually hold weight.

Usually, each party will be able to choose 1-3 collaterals for the GAL to speak with. You may want to check with the GAL to see if they are already planning on speaking with a child’s care providers (i.e. teachers, doctors, etc.). If the GAL is already planning to speak to a specific person, then there is no point in listing that person as one of your collaterals. If they are not planning on speaking to those providers, then only list them if they would have important and relevant information to your case.

It is always a good idea to also ask the person you’re listing as a collateral if they’re willing to speak to the GAL before you actually name them. Most people are likely going to have a lot of questions when asked if they’d speak to the GAL because they’ve never been involved in an investigation before. It’s important to note that anything your collateral may say to the GAL is not confidential and can end up in the GAL Report where both you and your ex can read it. We’ve seen collaterals refuse to actually talk with the GAL once they realized the other side would know exactly what was said. We’ve also seen collaterals provide very neutral information for both parents because they do not want it to look like they’re picking sides. It also might be a good idea for your attorney to speak with the collateral before you list them too. We’ve seen situations where people get very upset with their collateral when they read the GAL Report because the collateral said something very different than what was expected.

The GAL Report

A GAL Report is often very lengthy. It can take just as much, if not more, time to write the report than the investigation itself took. This can be very frustrating for parents who are anxiously waiting for the Report to come out.

Once it is finished, the GAL Report is an impounded and confidential document. This means the parents do not get copies of the Report directly. If they both have attorneys, the Judge could allow the GAL to send the Report to the attorneys. You’d then go to your attorney’s office and have to read it. If you do not have an attorney (or the Judge did not order for it to be released to the attorneys), you will have to go to the Probation Department at the courthouse to be able to read it. You are not allowed to take photos of it or copy it in any way. We actually take our client’s phone and leave them with just a notepad and pen to take notes or make comments as they read through it. This is to protect both parties and the children from the information in the Report getting published or spread around in a way that it shouldn’t.

Each Judge handles a GAL Report slightly differently. Some will look at the recommendations right away and give them a lot of weight while the case is still pending. Other Judges will not even look at the Report until the trial. When that happens, it can feel like a waste of time and money, but a Judge does not have to follow a GAL’s recommendations and some Judge’s do not want it to seem as though they are prejudging a case because they look at the Report.

Oftentimes, the GAL’s recommendations can help you settle a case, but the true beauty behind a GAL Report (from a lawyer’s perspective) is that it often allows hearsay (a third-party’s out-of-court statement) to be admissible where it otherwise could not get in without calling that person to testify at trial.

As stated already, a GAL Report is not always the end-all of a case if the Report does not come out in your favor. There are ways to be able to attack a GAL Report at trial to show that it should not be given any or a lot of weight.

It can be very emotional to read through a GAL Report. Make sure you carve out some time after you read it for yourself while you will not be with your children. Even if the Report is in your favor, there might be information in it that makes you very upset or angry. If it’s not in your favor, you might feel devastated. Your kids should not see your reaction, so give yourself some time to process the Report and find stability again after you read it.

The key to getting the most out of a GAL investigation is being prepared, organized, and focused. Not only will you feel better about it, the GAL will be thankful for making their job easier for them!

Written by Heather O’Connor of O’Connor Family Law, LLC.  Looking for help with a GAL Investigation?  Contact them today!