FALL 2015: Not All Guardians ad litem are the Same: the Difference Between Investigators and Evaluators

By Jamie Ann Sabino

The Probate and Family Court is authorized by statute to 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” and to make a written report to the court with the results of such an investigation.  G.L. c. 215 § 56A.  Not all such “guardians ad litem”, are the same however. 

S.J.C. Rule 1:07, as well as Probate and Family Court Standing Orders 1:05 and 1:08, provide a Probate and Family Court judge with the opportunity to appoint two different types of guardians ad litem  for such an investigation and report: Category E guardians ad litem/Evaluators and Category F guardians ad litem/Investigators.  (Category F also has provisions for the appointment of guardians ad litem for other purposes, such as next friend, incompetent divorce defendant, or to exercise or waive a privilege held by a child.  These appointments are not discussed in this article).

Both types of guardians ad litem are appointed by the Probate and Family Court to investigate facts in cases involving the care and custody of minor children and other matters that implicate the interests or rights of children.  Standing Orders 1:05 and 1:08 indicate that both such appointments are often needed in cases that raise 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.  S.J.C. Rule 1:07 lists the individuals qualified to be on the Category E/Evaluator list as 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, the details of which are laid out in S.J.C. Rule 1:07).

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.  Needless to say, there is much overlap in the work of these two different types of guardians 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

This difference is specifically identified in Probate and Family Court Standing Orders 1:05 for guardian ad litem investigators Standard1.1 A. states that an investigator shall provide descriptive information but not perform clinical evaluations, even if they are a mental heal professional.  The Standard then gives the following example:

  • Example of a descriptive statement: “Mr. Jones said that he has felt very sad since his separation with his wife; he said he has trouble sleeping, has no appetite, and has missed numerous days of work because he is too depressed to get up.” 
  • Example of improper clinical interpretation: “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.    Probate and Family Court Standing Order 1:08, 1.1 clearly states  that 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 (see Standing Order 1:05, 1.1(A)). 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.

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 ad litem's report?
  • If a Category E evaluation is being requested, what clinical expertise must the GAL have in order to be qualified to offer a clinical assessment or conclusion in your case?

An attorney should always closely review any guardian ad litem appointment made by the court in light of these questions and concerns.  If the type of appointment, issues and scope, or directions concerning recommendations is not clear, you should immediately move for clarification.  Additionally, if you believe that a guardian ad litem evaluator does not have the clinical expertise necessary, you should immediately bring this issue to the court's attention.  The further a guardian ad litem proceeds in an appointment, the less likely you are to be able to address such concerns.

Most importantly, familiarize yourself with S.J.C. Order 1:07 and Probate and Family Court Standing Orders 1:05 and 1:08.  Know your guardian ad litem!

Jamie Ann Sabino is a consulting attorney for Massachusetts Law Reform Institute, a statewide nonprofit law and policy center where she works on issues of family law and child welfare.  Prior to this position Ms. Sabino served for over 13 years as the VAWA STOP Grant Coordinator for the Massachusetts Trial Court, were she assisted     in organizing trainings for guardians ad litem.  Ms. Sabino formally practiced in the law firm of Klibaner and Sabino in Cambridge, MA concentrating in family law and criminal defense appellate law.   Ms. Sabino is a past president of the Women's Bar Association and Women's Bar Foundation of Massachusetts and has been honored by the Boston Bar Association, the Women’s Bar Association, the National Lawyers Guild, Massachusetts Chapter and Northeastern University School of Law for her commitment to pro bono work.  She is a graduate of Wellesley College with a B.A. in History and Political Science and Northeastern University School of Law.  Ms. Sabino is the mother of two wonderful sons.