What is a Guardian ad litem?

The Probate and Family Court is authorized to appoint a guardian ad litem to investigate the facts pending in court relating to or involving questions about the care and custody of minor children and provide the results in a written report to the court. with the results of such an investigation. However, not all guardian’s ad litem are the same.

A Probate and Family Court judge can appoint two different types of guardian ad litem referred to s Category E/Evaluator and Category F/Investigator. Both types of guardian ad litem are often needed in cases to evaluate and investigate questions about:

A child’s best interests as related to custody and visitation;

Advantages or disadvantages of removing a child from the Commonwealth;

Changes in circumstances that might warrant modification of a judgment;

Existence of a de facto parent-child relationship;

Parental fitness as related to termination of parental rights or guardianship;

Paternity of a minor child; or

Other matters implicating the rights and interests of a minor child.

Both categories of guardian ad litem are also charged with investigating, analyzing and reporting on facts related to such questions. But a Category E guardian ad litem is further charged with evaluating those facts.

In that one word “evaluate” lays the difference between Category E and F guardians ad litem.  The difference is highlighted by who may apply to be on the Probate and Family Court lists for these two different categories. The individuals qualified to be on the Category E/Evaluator list are those with a license to practice medicine or psychology, licensed independent clinical social workers, licensed marriage and family therapists, licensed rehabilitation counselors and licensed mental health counselors.

Individuals who may apply to be on the Category F/investigator include clinicians meeting the requirements for Category E along with licensed certified social workers licensed social workers, licensed marriage and family therapists, licensed rehabilitation counselors, licensed mental health counselors and attorneys.  In each category there are also requirements for having at least three years of experience in relevant work.

Simply put, Category F/Investigators investigate and then analyze the facts found, while Category E/ Evaluators will then apply their clinical expertise to the facts.  Thus, Category E/Evaluators will provide clinical assessments, impressions, formulations, opinions and, if asked by the court, clinical recommendations. There is much overlap in the work of these two different types of guardian’s ad litem.  While a Category F guardian ad litem investigating the facts pertaining to custody, visitation, and/or removal of a child from the Commonwealth must make some judgments and analysis of the facts in determining what is the pertinent information to include in report, he or she does not conduct a clinical evaluation or perform any other of the clinical functions.

An investigator shall provide descriptive information but not perform clinical evaluations, even if they are a mental heal professional.  For example,  a descriptive statement may be:

“Mr. Jones said that he has felt very sad since his separation with his wife; he has trouble sleeping, has no appetite, and has missed numerous days of work because he is too depressed to get up.”

Based on this statement, an improper clinical interpretation is, “Mr. Jones appears to be clinically depressed.”

Similarly, clinicians acting as Category E/evaluators must do an investigation of the facts before they can even reach the stage where they provide a court with an evaluation.  The evaluator’s role is to “gather and report factual information” and then to “use clinical knowledge to interpret that data and formulate clinical opinions to assist the court in making custody, visitation, or other decisions related to the welfare of a child.”  Thus, a Category E guardian ad litem evaluator must usually begin by doing the very same things as a Category F guardian ad litem investigator – interviewing the parties, the children, and collaterals, observing parent-child interactions, as well as reviewing court filings, medical, school and other records.  It is only with these facts in hand that the evaluator can then use his or her clinical expertise to formulate clinical opinions.

As indicated above, clinicians can be appointed as Category F investigators (as well as evaluators), but when appointed as investigators they cannot “evaluate” the case. The Probate and Family Court guardian ad litem trainers have generally recommended that clinicians who qualify for Category E appointments not accept appointments under category F as it is very difficult for them to “shut down” their evaluative skills.  However, there might be a case in which the investigation involves the analysis of a significant number of medical or clinical records where the knowledge and understanding of such records might make a clinician a good person to review and summarize these records.

It is important to note that under both Category E and F, a guardian ad litem is not to provide recommendations to the court, unless specifically requested by the court.  Practitioners generally report that judges usually request recommendations from Category E guardian ad litem evaluators, but less often from Category F investigators.  Under both Standing Orders, such recommendations are to be provided in a section separate from the main report.

Important Considerations

So, knowing these differences, what should a practitioner consider when requesting or responding to a request to have a guardian ad litem appointed?  Important considerations include:

  • What do you believe will really assist the court – is it gathering information (for instance, data showing that a parent might have a substance abuse problem and specifics as to how that has undermined the value of parent-child visitation) or a clinical evaluation (for instance, that the inability of a parent to overcome an addiction will likely interfere in the future with his or her ability to maintain a strong bond with a child).
  • What are the issues that you think need to be investigated and/or evaluated and what should the scope of the investigation and/or evaluation be?
  • Do you want the court to request that recommendations be part of the guardian’s ad litem report?
  • If a Category E evaluation is being requested, what clinical expertise must the guardian ad litem have in order to be qualified to offer a clinical assessment or conclusion in your case?

Key Takeaway: Know Your Guardian Ad Litem.

An attorney should always closely review any guardian ad litem appointment made by the court.