Massachusetts divorce lawyer Jason V. Owens reviews the admissibility of GAL Reports in custody cases, including a recent decision that muddies the waters.

In child custody cases, courts often struggle to understand the needs and perspectives of children, because Probate and Family Court judges typically do not allow children to offer testimony at trial. To enable children’s voices to be heard, Massachusetts judges frequently appoint a guardian ad litem (GAL), who is tasked with investigating child custody by interviewing the children (and other witnesses) before filing a written report with the Court that typically includes a factual summary, analysis and the GAL’s recommendations for custody, parenting time and visitation. By serving as the eyes and ears of the Court, the GAL enables the judge understand a child’s perspective without requiring live testimony from the child at trial.

Table of Contents for this Blog:

• Investigating Child Custody in Massachusetts: The Guardian ad Litem (GAL)
• Massachusetts Takes a Different Approach to GALs vs. Other States
• Massachusetts Case Impacts Admissibility of GAL Reports
• The Burden Shifts: The Party Who Agrees with the GAL Must Call the GAL as a Witness Under Churilov
• Churilov Can Make Child Custody Cases More Expensive
• Criticisms of GALs in Massachusetts Custody Cases

Investigating Child Custody in Massachusetts: The Guardian ad Litem (GAL)

In some states, a GAL is appointed as a personal representative of a child, and acts as the child’s advocate during the case. In Massachusetts, a GAL acts as an investigator for the court, gathering information by reviewing documents and interviewing witnesses – including the child – for a report that the GAL files with the Court. (Massachusetts, like many states, limits the role of “child advocate” to attorneys who formally represent children as clients. A Massachusetts GAL is the eyes and ears for the court; he or she is not an advocate for or representative of the child.[1])

Generally, there are two types of GALs who prepare reports for child custody cases:

• Category F Investigator GAL – Generally an attorney or therapist, a Category F GAL investigates custody by interviewing witnesses and reporting to the Court. A therapist who is appointed as a Category F investigator should not include clinical or diagnostic opinions in his or her report.
• Category E Evaluator GAL – A Category E Evaluator GAL is typically a mental health professional who investigates custody in much the same way as a Category F GAL, however, the Category E GAL may include diagnostic or clinical opinions in the report, including his or her impressions of the mental state of the parties, children or witnesses.

Massachusetts Takes a Different Approach to GALs vs. Other States

Unlike many states, Massachusetts draws a bright line between the role of the GAL and an attorney for the child. Massachusetts provides for the appointment of an attorney for the child in all care and custody proceedings in the Juvenile Court dealing with abuse or neglect. Although their clients are children, these attorneys maintain a conventional attorney-client relationship; the attorneys advocate on behalf of their clients in court, but are not witnesses who can offer testimony on behalf of their clients. Attorneys representing children are bound by Massachusetts Rules of Professional Conduct, Rule 1.14, which provides that an attorney representing a child is can only contradict the preferences of their child-client as follows:

Counsel should follow the client’s expressed preference if it does not pose a risk of substantial harm to the client, even if the lawyer reasonably determines that the client has not made an adequately considered decision in the matter.

In short, an attorney for a child in Massachusetts is largely required to obey the child’s wishes unless he or she believes that following the child’s wishes would “pose a risk of substantial harm to the client”. In contrast, a GAL in Massachusetts is not bound in any way by the preferences of a child when making his or her recommendation for custody or parenting time. A child’s preferences are generally noted by a GAL, and are given some weight in the overall custody analysis, but the child’s views are not determinative. Other states take a different approach.

As of 2012, forty-one states required that a GAL be appointed to represent the best interests of a child in abuse and neglect cases. Fourteen states, including Massachusetts, require the appointment of an attorney for children in abuse and neglect cases. Seven states require the appointment of both a GAL and attorney in abuse and neglect cases. Thirty-four states provide for the appointment of a “special advocate” – i.e. an attorney to represent “the best interest of the child”.

The appointment of an individual to “represent the best interests of a child” simply does not occur in Massachusetts. A GAL is appointed to investigate, report and issue recommendations on custody and parenting time. However, the GAL’s role is analogous to that an expert witness, not an attorney. A Massachusetts GAL does not “advocate” for a child or “represent” a child or his or her best interests; the GAL reports to the Court as a kind of expert witness, and his subject to cross examination like any witness. Meanwhile, an attorney who is appointed to represent a child in Massachusetts does not represent the child’s “best interests”, but rather, represents the child him or herself. (A “special advocate attorney”, which is common in other states, advocates for whatever position the attorney determines is in the child’s best interests, and is not bound by the child’s stated preferences. In fourteen states, however, courts appoint a separate attorney from the “special advocate” to represent the child’s wishes if the child’s preferences differ from the position taken by the “special advocate”.)

Admissibility of GAL Reports in Massachusetts

Most GALs who investigate child custody cases in Massachusetts are appointed by the Court pursuant to General Laws Chapter 215 § 56A which provides:

Any judge of a probate court may appoint a guardian ad litem to investigate the facts of any proceeding pending in said court relating to or involving questions as to the care, custody or maintenance of minor children … . Said guardian ad litem shall, before final judgment or decree in such proceeding, report in writing to the court the results of the investigation, and such report shall be open to inspection to all the parties in such proceeding or their attorneys. …

Of special importance is that the GAL Report represents an exception to the hearsay rule, which typically prohibits the admission of out of court statements by children who do not testify at trial. A GAL Report that includes statements from a child is generally admissible at trial, which provides a means for the child’s words to be admitted in court despite the hearsay rule. However, the GAL statute does not provide an absolute blank slate for admitting GAL Reports. For more than 40 years, one prerequisite has dictated the admissibility of a GAL report:

In order to determine adequately the reliability and accuracy of a [guardian ad litem’s investigative] report . . ., the parties should have the opportunity to rebut the report, including the right to cross-examine the investigator.

In general, the rule that GAL must be available for cross-examination in order for the GAL Report to be admitted at trial has been liberally construed. A party seeking to rebut or challenge a GAL’s Report or recommendations typically had the burden of naming the GAL as a witness; if the GAL appears and testifies, the GAL Report is invariably admitted into evidence. If the GAL is unavailable to testify for some reason, then the admissibility of the GAL Report could be challenged.

The important point is that a party who wanted to challenge the admissibility of a GAL Report generally had the burden of calling the GAL as a witness. However, a recent case suggests that the burden for calling a GAL as a witness may be shifted to a party who does not challenge the admissibility of the GAL Report.

Massachusetts Case Impacts Admissibility of GAL Reports

The case, Churilov v. Churilova (2017), involved a divorcing couple and their two young children. The trial judge, Hon. Jeffrey D. Abber of the Middlesex Probate & Family Court, appointed a GAL to investigate and make recommendations relating to custody. Following an investigation, the GAL recommended that custody be granted to the father, and not the mother of the children. However, following a trial, Judge Abber found that the mother should have custody.

A judge’s decision to decline to follow the recommendations of a GAL is not, in and of itself, particularly unusual. Judges are not required to follow GAL recommendations, and it is not unusual for evidence to be presented at trial that casts the parties in a different light from what the GAL observed. What made Judge Abber’s decision unusual in Churilov was that Abber held that the GAL Report was not admissible at trial because the father failed to name and subpoena the GAL as a witness at trial:

The father also argues that the judge erred by failing to consider the report of the court-appointed guardian ad litem, which, the father says, recommended that custody should be transferred from the mother to him. The judge explained, however, that he was not admitting the report in evidence because the father did not call the guardian ad litem to testify at trial. “Trial judges have broad discretion to make . . . evidentiary rulings conducive to the conduct of a fair and orderly trial.” … Here, as the judge correctly determined, the mother had the right to cross-examine the guardian ad litem before the judge could rely on her report in determining the children’s best interests. … Thus, because the father did not call the guardian ad litem as a witness, the judge’s exclusion of her report did not constitute an abuse of discretion.

It is very important to note at this point that Churilov is an unpublished opinion of the Appeals Court, which means the decision does not represent binding precedent that all of Probate and Family Court judges must follow hereafter. However, unpublished opinions are frequently cited for their persuasive value, and there is no question that attorneys will use the Churilov to challenge the admissibility of GAL reports in the future.

The Burden Shifts: The Party Who Agrees with the GAL Must Call the GAL as a Witness Under Churilov

It is difficult to understate just how dramatically the decision in Churilov breaks from common practice in Massachusetts, where historically, courts have almost universally placed the burden on a party challenging the admission of a GAL report to call the GAL as a witness. A major driving force behind this rule is simply cost. In most cases, a party that calls a GAL as a witness must pay the GAL’s fees for appearing at trial, which frequently exceed $1,000. Thus, if Churilov became common practice, any party seeking to have a GAL Report admitted at trial would face the burden of paying the GAL to appear at trial. At trial, it is fair to assume that at least 75% of the cross-examination of the GAL would come from the party challenging the admission of the report. In other words, the party who agrees with the GAL will be forced to pay for the opposing party to cross-examine the GAL, even if the former party wants the GAL Report admitted without the need for any additional testimony.

It is quite possible that Churilov is anomaly. Certainly, many judges will continue to place the burden on the party challenging the GAL Report to call the GAL as a witness. That said, the language of the Churilov decision is not subtle. The Appeals Court directly and uncritically supported the exclusion of GAL Report, holding unambiguously that (a.) the GAL Report should not be admitted unless the mother had the opportunity to cross-examine the GAL and (b.) mother was deprived of this opportunity because the father failed to call the GAL as a witness.

Even if a Probate and Family Court judge believes strongly that the party challenging the GAL Report should bear the burden of calling the GAL as a witness, that judge would need to think twice when presented with the unambiguous opinion to the contrary of the Churilov Court.

Churilov Can Make Child Custody Cases More Expensive

While the admissibility of a GAL Report might appear to be a technical issue, the impact that a decision like Churilov can have on child custody proceedings is very real. Custody cases are expensive, and court-appointed guardians can be pricey – virtually always more than $5,000 for a single case.

Churilov will make these prices go even higher. Moving forward, attorneys who seek to admit a GAL Report at trial may need to add the GAL to their witness lists at trial. As trial approaches, clients will need to pay the GAL’s retainer in advance of the GAL’s testimony. Attorneys whose clients disagree with a GAL are placed in a similar box. Where Churilov presents a tool for potentially excluding a GAL report if the opposing party fails to call the GAL as a witness, such attorneys are more apt to fight the report’s admission, adding to the delay before trial.

Indeed, one thing a decision like Churilov shows is that even a minor break from common practice in an obscure case can greatly affect client costs, since attorneys are duty bound to exploit and/or protect their clients from possible outcomes, not just certain ones. The mere fact that a judge might follow the reasoning of Churilov means that attorneys must adjust their strategies.

It is hard to say whether Churilov represents a “new rule”. However, even if the decision is not widely followed, many attorneys will feel compelled to add GALs to their witnesses lists (or oppose the admission of a GAL report on the grounds that the opponent failed to call the GAL as a witness) because of the mere possibility that Churilov introduces.

Criticisms of GALs in Massachusetts Custody Cases

Given the issues addressed in Churilov, the case offers an opportunity to explore some criticisms of the use of GAL reports in Massachusetts custody cases. Here are just a few:

1. Money Equals Justice for Children – Under Massachusetts law, one or both parents are generally required to pay for a GAL. The cost typically exceeds $5,000. Thus, children whose parents cannot afford a GAL are often rendered silent in custody cases. There are low cost alternatives to GAL investigations, but the resources and efficacy are limited. For example, the Court can appoint a probation officer to conduct a Family Service Report at no cost. In addition, DCF records that contain statements of children may be admitted as evidence in custody proceedings; however, the quality and content of such records can vary widely. For especially problematic cases – such as those involving serious allegations of child abuse – the Court might appoint a GAL that is paid by the Court; however, most cases do not rise to this level. In short, because Massachusetts judges won’t accept live testimony from children, and because GALs cost money, the voices of children from low- and middle-income families are often silent in Massachusetts custody cases.

2. More Money Equals Better Justice – Like attorneys or therapists, the quality of GALs can vary widely based on the individual’s training, experience and expertise. An investigation conducted by a well-regarded GAL can easily cost $10,000 to $15,000. A more limited GAL investigation – conducted by a GAL randomly selected from the court’s “list” of providers – may cost $5,000 to $7,500. Many attorneys would argue that “you get what you pay for” when it comes to the skills and aptitudes of a GAL, and few would dispute that the quality of a GAL Report produced by a well-known, highly respected GAL typically exceeds a report produced by a GAL randomly selected from the Court’s list. The bottom line is that GALs are just one more way that money buys justice in the Probate and Family Court.

3. GAL Alone Controls Child’s Words – As noted above, a judge is not required to follow the recommendations of a GAL. However, a strong argument can be made that a GAL’s real power is not his or her recommendations, but what statements of the child he or she chooses to include in the report at all. A judge may be able to disagree with the GAL’s recommendations, but the judge must rely almost completely on the GAL written version of the child interview to understand the child’s statements and perspective. Unlike adult witnesses, who can be called to testify if a GAL Report is inaccurate, Probate and Family Court judges almost never call children as witnesses, nor are GAL’s expected to audio record their interviews with children, despite the wide availability of cheap recording devices (i.e. any smart phone).

4. Reports go Stale Before Trial. Probate and Family Courts are terminally unfunded in Massachusetts, where funding typically goes first to District and Superior Courts, despite their lower civil case loads and the added drag of self-represented parties in probate court. In most contested custody cases, a GAL Report is filed around the time a Pre-Trial Conference. A trial typically does not occur for another 6 to 12 months. By the time trial finally occurs, a GAL report can easily turn stale, particularly as children age and mature. Because Probate and Family Court judges generally refuse to accept direct testimony from children at trial, judges frequently make custody decisions on badly outdated (and even blatantly inaccurate) information.

5. The System Fails Children in Cases of Alleged Abuse or Neglect. To be clear, children are not prohibited from testifying at trial in Massachusetts. However, many judges go their entire career without hearing testimony from a child in a contested custody case, where the practice of child testimony is frowned upon. Shielding children from litigation is often the right move in custody cases. However, in cases involving allegations of serious neglect or child abuse, the refusal of Probate and Family Court judges to face child witnesses at trial often results in dismal failure for the most vulnerable children. A child who has alleged serious physical or sexual abuse by a parent has already faced unimaginable trauma. For such a child to be told he or she is not believed – by a judge who refuses to hear them speak – only compounds the trauma. Many would argue that in cases where the evidence of abuse or neglect is backed by overwhelming proof, then it makes good sense to spare a child the additional trauma of court. However, in cases in which the proof is not so clear, and where a judge is preparing to dismiss a child’s allegations as untrue or unreliable, then the prohibition on accepting live testimony from children often amounts to simple cowardice by judges who are too scared to look a child in the eye and call him or her a liar. In these case, the GAL becomes a kind of shield for the judge to avoid making the kind of credibility assessment that judges are paid to make. Few judges seem to recognize just how devastating it can be for a child who alleges neglect or abuse to be told (implicitly) their allegations are a lie by a nameless, faceless judge who refuses to listen to their story.

About the Author: Jason V. Owens is a Massachusetts divorce lawyer and family law attorney for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. He is also a mediator for South Shore Divorce Mediation.

Schedule a consultation with Jason V. Owens today at (781) 253-2049 or send him an email.