Obtaining Discovery From the Guardian Ad Litem
By Vic Brown Hill
The guardian ad litem ("GAL") in a custody case is in a position to make or break the case for either party second only to the trial judge and the parties themselves. For that reason, attorneys and litigants alike are well advised to work cooperatively with the GAL during litigation. In the ideal world, the GAL is able to perform a quick yet thorough investigation and give insightful advice to both counsel that will allow their parties to reach an amicable resolution of custody and/or visitation issues that is in the best interests of the children involved. Unfortunately, we do not practice in a perfect world. One party's perception of what is best for the children frequently varies significantly from the other party's perception. When the parties simply cannot agree on a way to handle custody and visitation, the GAL's investigation and recommendations become central to the trial of a custody case. The GAL's recommendation is likely to be received poorly by at least one of the parties.
Courts place a great deal of importance on a GAL's findings and recommendations. To do otherwise would make appointment of a GAL a needless expense to the litigants. When the parties are polarized on the issue of custody or time sharing, the GAL will invariably take a position adverse to one party or the other. When a GAL takes a position adverse to a party, at the least it is a major set-back for that party's case - in some cases it is the "death knell".
Every attorney who litigates custody matters has been confronted with a GAL who takes a position contrary to the attorney's client. So, what then? When confronted with the GAL, whom the Court appointed, who recommends adversely to his client, what does the attorney do? There are only two reasonable alternatives - negotiate a settlement with the opposing side or litigate the case in spite of the GAL's position. To take either route effectively, one must know the full extent of the GAL's work and recommendation and one must know the facts upon which the GAL bases his position.
Frequently, a party is so convinced that his/her position is best for the children that the party cannot settle. The party's position may be fueled by true love and concern for the children; or it may be fueled by a self-serving motive. Either way, the party will frequently not consider settling the case. Thus, the only alternative is to litigate.
When the decision to litigate is made, the next question invariably will be, "what do I do about the GAL's position?" There are two choices there as well: refute the GAL's position with evidence or, "the unthinkable"; impeach the GAL.
Traditionally, a GAL's role in a case could vary greatly from court to court. Almost universally, the GAL would attend depositions, mediation, settlement conferences and hearings. The GAL usually is empowered to conduct discovery. The GAL would try to assist counsel for the parties in negotiating a settlement that is best for the children. If a case went to trial, in most cases, the GAL who was usually an attorney, would function at trial like another attorney. The GAL, armed with the knowledge he had gained through his investigation and from the evidence presented at trial, could examine witnesses and present an argument which amounted to the basis for his recommendation to the court.
Uniform Superior Court Rule 24.9 changed that to a great extent on May 19, 2005.1 This rule addresses the appointment, qualifications and the role of the GAL. Under USCR 24.9, the GAL continues to have the right to attend hearings, depositions and the like. The GAL can conduct discovery and can file motions on behalf of the children's best interests. None of that is materially different.
For purposes of this discussion, paragraph 7 of USCR 24.9 makes life a bit more interesting for everyone involved in custody litigation. According to that paragraph, "[i]t is expected that the GAL shall be called as the Court's witness at trial unless otherwise directed by the Court. The GAL shall be subject to examination by the parties and the court. The GAL is qualified as an expert witness on the best interest of the child(ren) in question." Under the new rule the GAL is a witness. Like any other witness, the GAL may be cross examined and his/her credibility may be impeached.
OBTAINING DISCOVERY FROM THE GAL
Since the GAL now functions as an expert witness, the basis for the GAL's findings and recommendations is vital knowledge that the parties need. In order to cross examine a GAL and, if necessary, impeach the GAL, the parties need to know what the GAL did or did not do, what conclusions he made, and to what extent he based his position on those conclusions. Traditionally, the GAL has not been subject to discovery. Now that the GAL is an "expert witness", should the GAL be subject to discovery? Absolutely - other expert witnesses certainly are.
With the advent of the Civil Practice Act, discovery became an important process that is integral to our system. Trial by ambush was abolished. Wide latitude is given so that complete discovery is possible. "The broad purpose of the discovery rule, under the Civil Practice Act, is to enable the parties to prepare for trial so that each party will know the issues and be fully prepared on the facts. Discovery is specifically designed to fulfill a two-fold purpose: issue formulation and factual revelation. The use of the discovery process has been held to be broadly construed." 2
To embrace the intent of the discovery rules as articulated by the Court and cited above, it would be absolutely necessary to allow broad discovery from the GAL prior to trial. Though the GAL ordinarily communicates his/her findings to the parties through counsel prior to trial, the GAL does not always communicate the factual basis for reaching those findings. During an investigation, the GAL typically talks to witnesses and considers various pieces of evidence that may not be admissible evidence at trial. Thus, the Court receives a recommendation that is based upon evidence that the Court could not otherwise consider. The GAL's recommendation can be an indirect way of influencing the Court with hearsay.
Further, there is always the possibility that aside from the evidence the GAL has considered, that the GAL has been influenced in his/her recommendation by outside factors that may include biases or prejudices held by the GAL. One would hope that the GAL would leave personal feelings aside when making an investigation and recommendation. However, GALs are human and if the GAL is influenced by peripheral factors, discovery is the tool that would elucidate that aspect of the case. The parties could then try their case fully armed with knowledge of all the facts that influenced the GAL.
The scope of discovery is within the sound discretion of the trial court. The Georgia Court of Appeals instructed us in Deloitte Haskins & Sells v. Green 3 that "...the discovery procedure is to be construed liberally in favor of supplying a party with the facts." If the trial court's decision is to be influenced by the report/recommendation of the GAL, and if the GAL is to consider facts and circumstances in preparing that report / recommendation, it stands to reason that the parties have full discovery from the GAL - and the law supports it.
IMPEACHING AND REHABILITATING THE GUARDIAN AD LITEM
Now that the GAL is an expert witness, does that mean that "the gloves are off" with regard to the GAL? In the past, the conventional wisdom held that attacking the GAL risked alienating the Court. Will the courts now accept a GAL being handled as any other expert witness? If the GAL is subject to examination and cross-examination, why not?
It seems reasonable that any party should be concerned about obtaining discovery from the GAL, impeaching the GAL's testimony and rehabilitating the GAL. The GAL should be concerned with these matters as well. While the attorneys may seek to impeach or rehabilitate the GAL, the GAL should be concerned with protecting himself from impeachment.
Before the new rule, some would have considered it unthinkable to impeach a GAL. Why? First, the GAL is an officer of the Court. USCR 24.9. Second, most courts do not appoint GALs in a vacuum - judges appoint GALs in whom they have confidence.
Commonly, when a judge appoints a person to serve as GAL, it is because the court has confidence in that person's ability and integrity - impeaching that person could be viewed dimly by the court. Yet, when the client demands his/her day in court and wants to overcome a GAL's position, if there is not sufficient evidence alone to overcome the GAL's recommendation, impeachment may be the only choice.
A GAL may be impeached like any other witness by: 1) attacking the GAL's veracity; 2) attacking the GAL's fitness; 3) showing that the GAL is improperly prejudiced or biased with regard to the parties; 4) attacking the GAL's performance of his/her duties; or 5) showing that the GAL has misconstrued or misinterpreted the evidence he/she has received.
ATTACKING THE GAL'S VERACITY
This is a bad idea. Unless there is indisputable evidence that a GAL has been in some way untruthful in the performance of his/ her duties, this approach is likely to lead to disaster. As stated above, the GAL is an officer of the court who was "hand picked" by the judge. An unprovable accusation that the GAL has misrepresented the truth will not be received favorably by the court. In fact, it may seem to be an act of desperation by a litigant who has nothing else upon which to rest a claim. In the face of indisputable evidence however, candor with the tribunal may require it.
ATTACKING THE GAL'S FITNESS
There may be several approaches to attacking a GAL's fitness, but they should be used with great care. They are closely akin to attacking the GAL's veracity. First, it may be possible to show that the GAL does not meet the qualifications for a GAL as set forth in USCR 24.9. For example, perhaps the GAL has not obtained the necessary training for the circuit in question. It would be more effective to use this approach to have the court change the GAL before the GAL's work is done. Deferring an objection to the GAL's qualifications until the work is done, seems like too little too late. It leaves the impression that the GAL only became unacceptable after his/her position became known.
Second, a GAL may be impeached by showing that he/she has a conflict of interest that calls the GAL's judgment into question. Once again, this would best be used to have a GAL removed early in the case. Once the case is on trial, this approach would seem reactionary unless the conflict was discovered very late in the case - so late that a motion to remove the GAL would not have been practical. In fact, a motion to remove the GAL should be filed anyway. This will show that the party brought the matter before the Court as soon as the conflict was discovered.
The third is the most disastrous approach to attacking a GAL's fitness - to attack his fitness on a personal level. The occasional attorney cannot resist the temptation to attack a GAL on the basis of an act or omission the GAL has committed in his/her personal life. The GAL's personal life is a stone best left undisturbed unless the evidence of unfitness is incontrovertible and so outrageous that no defense exists for it. Like attacking the GAL's veracity, this approach is likely to be received dimly by the court. It is likely to be perceived as an unprofessional, last resort when there is not another argument on the merits of the case. Such a strategy is not likely to be persuasive to the court.
SHOWING THAT THE GAL IS PREDJUDICED OR BIASED
GALs are human and are subject to becoming prejudiced or biased toward a party. Impeaching a GAL by showing prejudice or bias is similar to showing a conflict, except that the prejudice or bias may be based upon some preconceived notion about a party that has nothing to do with a previous relationship. A prejudice or bias may even arise during the litigation. If it is not based entirely upon facts that are relevant to the case and related to the best interests of the children, it probably has no place in the litigation. If such a prejudice or bias can be shown to influence the GAL's position, it may be a sufficient showing to impeach the GAL's recommendation.
While this approach may be effective, it will be hard to prove the prejudice or bias. First, one must prove that the prejudice/bias exists. Once that is proven, one must prove that the prejudice/bias has affected the position the GAL takes in the litigation. How to prove these things will depend upon the specific facts and circumstances of the case. The actual proof may not be shown until examination of the GAL at trial. Once shown however, such a prejudice or bias is likely to be persuasive to the court. It may not prove a party's case, but it could neutralize the GAL.
ATTACKING THE GAL'S PERFORMANCE OF DUTIES
The GAL's position in a case should be based upon what he has learned in the performance of his duties. If it can be shown that the GAL did not properly perform those duties, his position in the case may be impeached. The GAL may unwittingly provide the attorney with what he needs in order to impeach his performance.
Most GALs send a questionnaire to the parties. That questionnaire requests sundry information about the case and the party. Usually, the GAL requests that the parties advise them of any facts or issues they believe are pertinent to the question of custody/visitation. If a party provides information to the GAL and it can be shown that the GAL completely disregarded that information or failed to follow through with the information, the GAL's position may be impeached.
This approach is especially effective when the GAL requests a list of witnesses from the parties - and most GALs make such a request. If the GAL fails to interview the witnesses submitted by a party and then takes a position adverse to that party, the GAL's position may be effectively impeached. Such a lack of diligence on the part of the GAL may also be used to show bias or prejudice. The GAL is well advised to make sure that he at least attempts contact with every witness submitted by the parties.
SHOWING THE GAL HAS MISCONSTRUED EVIDENCE
Under certain circumstances, it may be possible to show that the GAL, with all good intentions, has misunderstood or misconstrued evidence. This may be done through examination of the GAL or through the use of a third party witness.
Careful examination of a GAL on the subject of a conclusion he has reached may reveal that he has based that conclusion on an assumption that is flawed in some way. Confronting the GAL on the witness stand with alternative interpretations of the evidence may lead the GAL to question his own conclusion. If the GAL can be made to question his own conclusion, that will weaken the persuasiveness of his recommendation.
At times, a GAL may receive evidence and misinterpret that evidence. For example, a GAL may review school records for a child and draw a conclusion from some notation made in the file. If the GAL bases his position in part on that conclusion, the position may be impeached by showing that the notation in the file was misinterpreted. This may be done by having a teacher or administrator testify as to the true meaning of the notation that is different from the GAL's interpretation.
All of these approaches to impeaching a GAL depend in large part upon having knowledge of what the GAL did, what conclusions he made, and to what extent he based his position on those conclusions. Discovery is the appropriate way to learn those facts.
Our system is based upon litigating cases with full knowledge of the facts
and circumstances that are relevant to the issues pending before the Court. The purpose of litigation is not for one party to defeat the other - ideally it is for justice to be done. Justice is done by applying the law to the actual facts of the case. Our system becomes adversarial when we disagree over which law applies in a given circumstance and what the relevant facts are.
Research and legal arguments educate us as to the applicable law. Discovery educates us as to the facts. The discovery procedures are designed to allow litigants to ferret out all of the facts, even those that are not necessarily admissible.
Attorneys should be allowed to obtain discovery from GALs like any other expert witness. That information should be used like any other expert witness testimony - to evaluate the quality of the expert opinion; to refute the expert opinion; or to impeach the expert.
Once a decision to treat the GAL as an expert has been made, the attorney should plan how to proceed very carefully indeed. If there is a possibility that an adverse recommendation from the GAL may be overcome using information gathered through discovery, the attorney may plan to attempt that. The attorney should carefully consider what negative impact that may have on the court's perception of him and his client however. While impeaching the GAL as an expert witness may seem reasonable in the course of zealous representation, it must also be considered from the perspective of the court. The decision will require careful consideration of what may be gained and what may be lost in the process.
1 1. U.S.C.R 24.9 (7)
Role at Hearing and Trial
It is expected that the GAL shall be called as the Court's witness at trial unless otherwise directed by the Court. The GAL shall be subject to examination by the parties and the court. The GAL is qualified as an expert witness on the best interest of the child(ren) in question. The GAL may testify as to the foundation provided by witnesses and sources, and the results of the GAL's investigation, including a recommendation as to what is in a child's best interest. The GAL shall not be allowed to question witnesses or present argument, absent exceptional circumstances and upon express approval of the Court.
2 Travis Meat & Seafood Company Inc., et al v. Walter W. Ashworth, 127 Ga. App. 284, 193 S.E. 2d 166, 1972, citing Hickman v. Taylor, 329 U.S. 495, 500, 67 S. Ct. 385; Reynolds v. Reynolds, 217 Ga. 234, 123 S.E. 2d 115.
3 Deloitte Haskins & Sells v. Green, 187 Ga. App. 376(2), 370 S.E. 2d 194 (1988)