Writing Guardian ad Litem Reports in SC
How to Write Guardian Ad Litem Reports | 15 Recommendations (or Suggestions)
By M. J. Goodwin, Esquire
It’s twenty-five days before a four day contested custody trial in your first guardian ad litem case. You took on guardian ad litem work because you wanted to help kids. Seemed like a good idea at the time. You can help kids and have a fairly guaranteed source of income. Someone told you it would be easy money. You run into one of the lawyers at the courthouse and she says “have you written your guardian report on Smith v Smith yet?”. Of course you haven’t and that feeling of dread and panic overcomes you. You politely say “I‘m working on it” and go back to your office. You open the file, maybe for the first time in several months, and start pecking away on the keyboard. Even with all your other work, you have to finish the report and get it out within the next five days. You aren’t even sure where to begin.
Family Court is often viewed as the “wild west” of our court system. It is a court of equity. So whatever’s fair, right? A Guardian ad Litem is sort of like a marshal in the wild west. Fair, impartial, balanced and there for good. But you have to get it down in writing. The dreaded written report.
A lot hangs on that report. You can rest assured that it will be picked apart by both the parties to the case. Each and every tiny detail will be poured over with a diligence you did not know existed. First, they will look for ammo against the other party. Then, they will look for mistakes you made about the party him or herself. Then they will call your office.
You can also rest assured that the attorneys will pick the report apart. They are looking for the same things their clients are, but with a professional’s eye. First, they want the ammo against the other side; then they want to see the weaknesses in their own case and finally, they want to find the spot that you missed or the evidence you misconstrued or overlooked. The statute gives them twenty (20) days to do this.
I think the best starting point when preparing to write your guardian ad litem report is before you ever work on the case at all. Go to the statute. Know what is required of you before you even open a file.
SC Code Section 63-3-830(A)(6) addresses the written report. It provides that it is the GAL’s responsibility to submit to the court and all parties CLEAR AND COMPREHENSIVE WRITTEN REPORTS, INCLUDING, BUT NOT LIMITED TO A FINAL WRITTEN REPORT REGARDING THE CHILD’S BEST INTEREST. Well, there is a daunting task. The code goes on to set out other specific requirements, for example, the names, addresses and phone numbers of “those interviewed during the investigation” must be included. But you can’t make any “recommendations” as to who should have custody. Oh yes, don’t forget that you have to do all this and also follow the South Carolina Rules of Evidence. But you can state “fact” and your conclusions from those facts.
So, what you have to do, is take a case where your ward is a three year old child (who can’t help you); review all the “he said, she said” information, provided by parents who despise one another; interview some folks and just summarize it. Or, if you have a teenager, just find out what he wants and summarize that. Right? Wrong.
Read all of the Private Guardians ad Litem statute. The REASON for your involvement in the first place is important. A GAL is appointed when “without a guardian ad litem, the court will likely not be fully informed about the facts of the case and there is a substantial dispute which necessitates a guardian ad litem.” So the Court is looking for information: information that is vital to the present and future well being of a child; information that the Court probably will not get from hearing the case as presented by the lawyers. The child is already in bad situation. You know that because you have been appointed. There is a “substantial dispute.” Your job is to assist the fact finder (the Judge) in making decisions for the child.
As in any task, I think it is helpful to know what not to do, as well as what to do. So I will tell you what I do and what I think is not a good idea to do.
- For non-party witnesses, I try not to quote witnesses directly. I used to do more summaries of witness statements than I do now. Unless a witness makes an astounding, situation changing statement to me, I try not to quote them. I take notes as I interview them and put those notes in my file (which are my work product under the code) and save them for trial. This serves a couple of purposes. First, it doesn’t give away my hand if I want to cross examine the witness and it also protects the witness, who will no doubt be attacked with whatever information I have provided twenty days prior to trial. What I do put in the report is my impression of the witness. I might state that Mr. Smith was particularly supportive of the mother and had no discernible bias. If a witness seems a little jumpy or nervous, or even possibly mentally ill or intoxicated, I state that, as diplomatically as I can. If a witness did not seem credible to me, I state that. The code requires that I state facts and conclusions within the rules of evidence. So, for example, if I catch Mr. Doe in a bald-faced lie, I have to state that fact, together with my conclusion that he is not credible. I might state that a witness gave me inconsistent stories and I found him not to be credible. What is interesting to me about the code section is that you have to list EVERYONE you interviewed, even if you don’t use what that person said. So, theoretically, if some lunatic comes in to talk to you about the case, and that person is just a meddler and offers no useful information at all, you have to list that person if he was “interviewed.” What constitutes an interview is not defined by the code. If a person wants to speak to me anonymously I tell them no. If I get anonymous voice mails at my office, I do not list those, either. I do state which side the witness is supporting.
Good Witnesses to Cover: teachers, coaches, counselors, neighbors, pastors, daycare workers, child’s best friend’s mother or father, adult siblings, paramours, step-parents, former spouses, employers, former employers, doctors (and their staff), dentists/orthodontists (and their staff), law enforcement officers, DSS officials
- For party witnesses (who are usually parents, but not always), I do list quotes. I particularly list what the party says about the OTHER parent. This is much more important that what he or she says about himself. I also list my OBSERVATIONS of the parties. These folks have usually been part of my work life for at least two years before trial. So I know them pretty well. If there is a pattern of always missing appointments with me, I state that. I list the dates and times of the appointments missed. If I ever smell alcohol or suspect drug use, I list that. (If I think there is drug use, I ask for a drug test). If there is a pattern of lying to me, I state that, as well as I how I know there has been a lie told to me. If there is constant complaining about the other parent, particularly for petty things, I list that. If there is constant complaining about legitimate things, I list that. If every little thing has to go between the attorneys, I list that. If the child is consistently late, absent or unprepared for school with one or both parents, I list that. The very best cases are those that start off rough, with a lot of bickering, then settle down and I don’t hear from the parties for several months at a time. That means those parties are getting along well. I list that.
- Unless I have a very compelling reason to do so, I try to never, ever quote the child. You have to remember that this child is in the most difficult and emotionally painful position of his young life. This child will be stuck with these (very likely) dysfunctional parents long after you are out of the picture. And he will hear what he said repeated back to him over and over. So do him a favor and don’t quote him. But you can observe him. You can “glean” things from him. For example, if a child states a clear preference for one parent over the other, I don’t state it that way. I may say that the child prefers to live with parent A, but loves parent B dearly. I might state that the child prefers to live with parent A for a variety of reasons (marital home, close to friends, doesn’t have to change schools, feels more comfortable with parent of the same sex, communicates more easily with that parent….) Each case is different and you have to use your common sense. Our code does provide that the wishes of the child of any age shall be considered by the Court. You, the GAL, are how that information is going to get before the Court. So, if your ward has a preference, make sure you know it and make sure you state it. But don’t over state it. And be careful HOW you state it. However, if a child makes a disturbing statement to me or a statement regarding abuse or neglect, I do quote the child. For the very first time this year, I had a child tell me that the she “really hates” her mother. I have done this since 1994 and had never heard those words from a child’s mouth. So I talked to her about it. She insisted that she did in fact “really hate” her mother and I put it in my preliminary report. The report led to counseling and the counseling led to some degree of healing. If I am going to quote a child, I always tell them about it before hand. These kids have had enough surprises.
- A very easy thing to do that will make both parties happy is to praise the child in your report. It is easy to find nice things to say about the child. The child is delightful, has a good sense of humor, excels in school, enjoys horseback riding, participates in karate…..anything. People like to hear good things about their child. If the child WANTS to participate in something and is being kept from doing so because of visitation or custodial arrangements, state that. In this day and age, a child can get a basketball scholarship to college. If he is missing games when mom has him, that could hurt him long term. If it is important for him to be there, make sure he’s there. That is your job. Put it in your report. Get to know your wards. They are amazing. And they will appreciate your efforts.
- Attach things to the report. Some of the things I attach are school records, pictures, criminal records, drug test reports, Facebook printouts, My Space pages. Follow the rules of evidence though. If you can’t get it in evidence, don’t attach it. For example, incident reports are not admissible (by statute). So leave those off. You can still use the information that you get from them, you just have to do it other ways.
Things to Attach to the Report:School records come in pursuant to the Rules of Family Court; Criminal records can be certified for Court; or you can ask a witness about their record and if they lie, you can impeach the witness with the document. When dealing with criminal records, remember that there is a difference between arrests and convictions.; Drug tests: familiarize yourself with “levels” that are shown on the report. If a person claims to have kicked the habit, do a series of tests. If they have in fact quit, the levels should decrease over time.; Facebook is a goldmine of information! You just won’t believe the things people post on there! Print it out and use it for your ward’s advantage. It is difficult to deny being drunk with a paramour when there is a picture of that very act posted on line.
- If home visits are done, take pictures and simply attach them. The old cliche that a picture is worth 1000 words is true. There is no need for you to describe a 3 bedroom 2 bath home in words if you can simply photograph it. Digital cameras are cheap now and there no reason not to have one as part of your GAL practice. If there are things that are not apparent from the pictures (such as vile odors or roommates with felony convictions) list them in your report. Make note as to whether you made an announced or unannounced visit. If you make more than one visit, list the dates and times. List the address, too. A lot of times people move during these cases.
Take Pictures: Take pictures of the inside and the outside of the house.; Take pictures of the big dog chained up in the neighbor’s yard.; Take pictures of any roaches or vermin.; Take pictures of filth.;Take pictures of cleanliness.; Take pictures of the children’s rooms, closets and toys.; Take pictures of closets and bathrooms and refrigerators (open) and pantries.; Take pictures of anyone who is there when you make the home visit.; Take pictures of the nasty cat litter box.; If in doubt, take that picture.
- Try to give yourself enough time to write your report well in advance, so you can let it settle in your mind. Then go back and read it a few days later. Have someone in your office read it. Fresh eyes are good. Try to think of the report from an adversarial point of view. What would you attack in the report? Where are the holes? It is one-sided? Question it and revise it.
- Run spell check. Be aware that some words are not caught by spell check. Their and there are examples. Brush up on your grammar. You are a professional. Do not state “The father’s house is where the child was at.”
- Don’t use weird fonts. It makes the report hard to read.
- Use at least 12 point type.
- Take enough copies of the report with you to the final hearing. I like to file my reports with the Court ahead of time. That way, there is no question as to whether or not I made the twenty (20) day deadline.
- You can get the twenty (20) day deadline reduced to ten (10) days or even eliminated all together by agreement. Read the statute. Set up ticklers on your calendar to get the parties and child in to see you a month or so prior to the final hearing. You have an obligation to provide updated, current information. Even if you have filed your “final” report, you can always update it. You can also change your position if the testimony does not go the way you thought it would go.
- If there have been multiple hearings, I add a case history section to the report, at the very beginning and summarize the hearings. This is particularly important if there have been multiple judges involved.
- Include your final billing statement with the report. Be sure to include your estimated time for the final hearing. You can always revise that estimate. But it is good for the parties and attorneys to know where they stand with the billing. This should not be a surprise to anyone because you should have been billing at regular intervals throughout the case. Remember that you are providing an important service and bill for your time. You may be the only neutral person that this child ever speaks to about his situation. Your input is valuable and your hard work should be compensated. If a large balance is due, be prepared to tell the Court the time frame that would expect payment to be made. Judges often look at the GAL and ask when is that due? Know what is reasonable and state it. Get paid. Contrary to what someone told you, this is not “easy money.” This is hard earned, well deserved money. Collect it.
- You cannot make recommendations. But you can make suggestions!
Some final thoughts:
- Don’t be afraid to advocate for your ward. You may be the only one who does. Being a guardian ad litem is a challenging job, but can also be very rewarding.
- Use your common sense. What would be important to you if you were the judge? What would be important to you if you were the litigants? What would be important to you if you were the child?
- If there is more than one child, remember that they are all individuals. Give them each their own section of the report. They are not a herd or a hive. They are individual people. While it is true that most times, it is preferable to keep the children together, that is not always the case. Look at each child as an individual. To do otherwise is to neglect at least one child.
- Don’t be afraid to think outside the box!
- In the really ugly, hotly contested cases, I feel like I have done the best work for my child ward when I have made both sides furious with me. That means I got all the information that the Court needs to make the decisions.