Little reason to attack the guardian at trial

Posted Sunday, January 15th, 2017 by Gregory Forman
Filed under Child Custody, Guardians Ad Litem, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

Working on materials for an upcoming lecture on attorney/guardian interactions, I realized that it had been years since I last felt compelled to “attack” the guardian ad litem at trial. However I am often asked by colleagues on effective techniques to undermine the guardian. There are times when the only effective strategy for minimizing a guardian’s impact is to attack the guardian. However, generally, there is a better method: produce evidence that renders the guardian’s testimony irrelevant and exposes it as a product of an inept or biased investigation.

For temporary hearings–where one lacks the ability to provide detailed testimony and evidence to demonstrate a guardian’s errors–attacking a biased or inept guardian is probably required. For situations in which the guardian is lying about his or her interactions with and observations of the client (something that, thankfully, has never happened to me), attack is probably also necessary. However for situations in which the guardian is misrepresenting the child(ren)’s preference, simply noting that one disputes the guardian’s representation of preference and asking the judge to interview the child(ren) is a better method of blunting any impact from the guardian’s inaccuracy.

Most often litigants want to attack the guardian because they disagree with the findings in the guardian’s investigation. To the extent these findings are accurate, attacking the guardian is an ineffective strategy. However when these findings are inaccurate, it is more powerful to prove the inaccuracies through other evidence than to impeach the guardian through cross examination.

Assume for example one represents a mother in a custody case. The guardian’s report inaccurately claims that mother has a drinking problem and that father has been the children’s primary caretaker. Rather than attack the guardian one should simply present evidence showing the guardian is wrong. Having numerous witnesses who know the children well explain how mother has been the primary caretaker and providing evidence demonstrating mother’s sobriety effectively undermines that guardian’s conclusions. Developing that testimony and evidence may be more time consuming and mentally taxing than attacking the guardian, but it’s also much more effective.

Assuming one has done this in one’s case-in-chief, a very effective, though not necessary, cross examination technique is to start by asking the guardian if he or she stands by his or her conclusion. If the guardian stands firm, one can ask a series of “despite” questions. For example, “You contend the father has been the primary caretaker despite the child’s school teacher testifying that she primarily interacts with the mother?” or “You contend the mother has a drinking problem despite the fact that she’s been promoted three times in the past four years at her job?” These “despite” questions undermine the guardian’s conclusions, assuming the guardian stands firm, while highlighting the helpful evidence that proves otherwise. This is vastly more effective than trying to “prove” the guardian is a lying idiot.

There is rarely a need to attack a guardian at trial. To the extent the guardian’s investigation is accurate and unhelpful, it is better to accept its accuracy and seek the best possible result through negotiation (or limit one’s goals at trial). To the extent the guardian’s investigation is inaccurate and unhelpful, it’s simply better to prove the inaccuracies.

4 thoughts on Little reason to attack the guardian at trial

  1. George Sink says:

    Thank you, as always for your clear-headed help, Greg.

  2. Mindy Schneider says:

    I agree with you 100 percent.
    Your articles are always an interesting read.

    Thank you for taking your time to enlighten all of us.

  3. G. says:

    What is the common practice of appointing the GAL? Does the plaintiff’s attorney select the GAL and then is he/she approved by the Court? What if the Defendant does not agree and objects to the appointment? Shouldn’t the Judge appoint a GAL with or without either party’s recommendation to guard against bias? Please excuse my ignorance.

  4. Brandon Mccutcheon says:

    Since attorneys are often ordered to serve as GALs I will share the horror in that.

    If no psychologist with vast experience is involved the GAL’s opinion is worthless. No one has ever mistook a lawyer for a forensic psychologist and your “numerous training classes” are not a terminal degree in human behavior, mental health, child developmental, ect. now are they. The hubris of some attorneys in this respect is repulsive. When you have the power to influence a court concerning future family dynamics, based on your uneducated opinion, you are unethical and immoral .

    By simply being placed in a position does not give you some magically bestowed ability to correctly come to determinations. Lawyers who do this in families involved in heated divorces knowingly committing reprehensible acts.

    Many observations then recommend actions are simply wrong. These high conflict divorces are counterintuitive at times. For instance, a child will usually cling to an abusive parent. There is an evolutionary component to this. The behavior can also be seen as a “strong bond” as one GAL wrote, between a father and son. The father was later found to be abusive (sexually, physically, emotionally) to the child.

    ATTORNEYS Acknowledge your limitations and stay the f@@k out of the worthless creation of a GAL role. The position was created mostly by attorney lawmakers to help their lupine (attorneys working family court cases) kin.

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