Friday, August 18, 2006

When the Guardian ad Litem goes the other way ...

In a custody case, sometimes a judge will appoint a guardian ad litem ("GAL") (sometimes called a CASA) to represent the best interests of the children. Sometimes the GAL is a lawyer, sometimes not. Sometimes the GAL is a volunteer, but often the parents end up paying for the GAL's time, especially if the GAL is an attorney. Another time, I will address the issue of how to deal with the GAL during the case (there are many answers to that question), but now, I'm just addressing the situation where the GAL has done her (or his) investigation, written her report and made recommendations to the judge as to what custody and visitation arrangement the GAL thinks is in the best interest of the children. When the GAL recommends that the other parent have custody (full or primary), you have a big dilemma. If you sit back and do nothing about it, there is a strong likelihood that the judge will "rubber stamp" or adopt the GAL's recommendations. The judge sees the GAL as a neutral person who is only looking out for what is best for your child(ren); so, the GAL's recommendations carry a lot of weight in the judge's custody determination. This common knowledge is the reason why many parents in custody cases end up settling the whole custody case based on the GAL's recommendations -- because their lawyers have told them that it's no use going to trial, that the judge is just going to do what the GAL recommends. So, the question is, what can you do if you are in that situation where the GAL goes the other way, recommends that custody of your children should be awarded to the other parent? At that juncture, you really ought to dig up the money for your lawyer to take the GAL's deposition and subpoena the GAL's complete file to the depo. A deposition is sworn testimony of a witness taken outside of court before the trial (usually in one of the lawyers' offices) in front of a court reporter. The purposes for taking a deposition are in large part to find things out (called "discovery") and also the pin the witness down to a certain version of the facts (their truth / their opinion / their perspective). A deposition can be and is often much longer than the actual trial testimony of that witness. It helps the attorney know what the witness is likely to say in court. One of the most important rules for trial lawyers is don't put a witness on the stand if you don't know what she/he will say. There are many ways to find out what the witness will, or is likely to say, but in my opinion, taking their deposition is the best way, provided that the attorney is prepared for the depo and skilled at taking one. It is an art. It's even fun sometimes (for the attorney, that is). Lawyers usually only take depositions of witnesses for the opposing party because friendly witnesses will talk to you for free (ie, you don't have to pay a court reporter). So, in this situation, I think that it's important for the lawyer taking the GAL's depo, to go through the GAL's experience, qualifications, education and training in the issues involved in the case and also just with custody cases in general, the GAL's background, methods used in the investigation and coming up with the GAL's recommendations, things the GAL was supposed to do & did or didn't do (or how long ... like only observing the children for an hour with each parent), really get into the nitty gritty of why the GAL made this decision, explore any possible biases the GAL might have, and get the GAL to admit that she didn't consider certain things before making her recommendations. In my opinion, you really need this to do the GAL's depo in this situation, and you need to challenge this GAL's qualifications, method, report, recommendations and possible biases or else the judge very well may agree with the GAL as judges, not only think GALs are non-biased, they also appreciate that GALs can investigate the case as the judge really can't do. So, you have to get the judge to doubt the reliability of the GAL. If you don't, you are going to be in trouble. I would NOT roll over and consent to the other parent having custody without a major challenge to the GAL ... also, with that kind of recommendation, it sounds like you need to go to trial if you want custody of your children ... you need to ask your lawyer, what more do I have to lose??? You need to talk with your lawyer about whether the GAL is also recommending that you have supervised or very limited visitation/access -- if that is the case and the other parent will settle with you having unsupervised and liberal visitation/access, then you might want to consider trying to negotiate a settlement you can live with. You need to talk to your lawyer about what other evidence you have that would contradict the GAL's report. After the depo, you should weigh out the risks of taking the case to trial versus trying to settle the case. I hope you have an aggressive attorney. The GAL just changed the power equation with the recommendation that the other parent have full custody. Good luck!!!

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