Three methods of reducing the impact of an unfavorable guardian ad litem report

Posted Friday, April 20th, 2018 by Gregory Forman
Filed under Child Custody, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

The typical response of an unhappy litigant to an unfavorable guardian ad litem report is to accuse the guardian of bias. While in rare instances the guardian is actually biased, more often the report is fairly accurate (reports, being the product of human beings, are rarely perfectly accurate) and the litigant is simply unhappy with the unfavorable information contained therein. In most cases in which a report is both unfavorable and inaccurate, it is likely to be due to sloppiness or sheer laziness (i.e., a failure by the guardian to conduct a complete investigation or to thoroughly review one’s notes when drafting the report) rather than actual corruption by the guardian.

A family court judge experiences substantially more unhappy litigants than corrupt guardians. Thus, when litigants attack a guardian as “biased,” a judge is likely to hear “disgruntled litigant.” Direct attacks on the guardian’s integrity rarely succeed and more often leave the attacking party worse off.

However there are three ways to blunt the impact of an unfavorable report. The most basic method is to highlight the portions of the guardian’s report that are favorable [even the party who likes the guardian’s report should do this]. Go through the report and ask the guardian to acknowledge favorable information. A series of simple questions with notations where in the report the favorable information exists is effective. For example:

• You acknowledge the children have a close and loving relationship with my client
• You acknowledge my client has coached the son’s soccer team for past four years
• You acknowledge that this activity has been a bonding experience for the son

If the guardian fails to acknowledge these things on cross examination, one simply shows the guardian the section of the report where he or she noted this information and asks the guardian to confirm what the report states. If there is nothing favorable about the client in the guardian’s report (something that I have yet to experience) a simple, “you had nothing favorable to say about my client?” is an effective question. Just as there are no perfect humans, there are no imperfect ones. The guardian should have found something good to say about each party.

The other two methods require more advance planning. An obvious method to impeach a guardian’s report is to demonstrate its inaccuracy. This requires one to review the report and then develop testimony from third-parties or documentary evidence that exposes that report’s inaccuracies. If one expects the guardian’s report to be unfavorable, one should never agree to allow the guardian to delay issuing the report later than the 20-day period set forth in S.C. Code §63-3-830(A)(6), as this reduces the time available to develop such impeachment evidence.

There are three categories of inaccuracies that one can highlight in the guardian’s report. The first category are those that favor one’s client. Obviously one shouldn’t highlight this favorable information and then impeach its accuracy. Best to ignore the few inaccuracies that might favor one’s client. The second category are inaccuracies that are inconsequential. If one is trying to limit the report’s impact, highlighting such inaccuracies can still lead the judge to question the report’s overall accuracy. The best inaccuracies to highlight are those that favor the other side, as these show both mistakes and bias in the guardian’s report.

To impeach the guardian’s report through third-party witness testimony, one should show the witness the inaccurate portion of the guardian’s report, ask the witness to note the inaccurate information, and then ask the witness for the correct information. For example:

• Can you turn to page 30 of the guardian’s report?
• That portion of the report states that you told the guardian that you saw my client hit and yell at the child at the park last summer
• Did you tell the guardian this? (you’re only asking this question if you expect the answer to be “no”)
• What did you tell the guardian about this incident? (only ask this question if the answer is not going to be damaging)

If one is impeaching the guardian’s report through third-party testimony, make sure to list these witnesses in discovery responses–if not previously listed–shortly after getting the guardian report. Any objection to the timeliness of listing this witness can be addressed by noting that the witness is being used to address the accuracy of the guardian’s recent report.

One impeaches the guardian’s report via documents by questioning the guardian. For example:

• At page six of your report, you state that the parties’ son is doing poorly in school
• I’d like to show you the son’s current report card (introduce that exhibit)
• You would acknowledge that the son is doing well in school

Only do this line of questioning if the son is, indeed, doing well in school. Assuming that to be true, any answer you get from the guardian helps. Confirmation that the son is doing well in school demonstrates inaccuracy (and bias if one’s client is the custodial parent). Denial of the obvious is strong evidence of bias.

If one is planning to use documentary evidence to show the guardian’s report is biased or inaccurate, one needs to produce these documents in discovery–if not produced earlier–shortly after getting the guardian’s report. Any objection to the timeliness of the document being produced can be addressed by noting that document is being used to address the credibility of the guardian’s recent report.

The third method of reducing the impact of an unfavorable guardian report requires substantial prior planning and is unlikely to be effective if implemented only after receiving the guardian’s final report. This method is to show that the guardian has not conducted the investigation that the client proposed. The goal is to show that the guardian’s investigation is incomplete (and thus perhaps not wholly trustworthy) or that the guardian’s refusal to conduct the requested investigation is a sign of bias.

Often litigants will look at mere “counting” facts within the guardian’s report in an attempt to show bias. Examples are claims that the guardian talked to many more witnesses for the opposing party than for one’s own client or met with the opposing party many more times than with the client. Absent other evidence, these attacks are rarely effective. Often the guardian has more contact with the party who finds the report favorable because that party was more cooperative or had more favorable information to offer. Demonstrating such imbalance may not demonstrate bias.

However, showing that one asked the guardian, particularly in writing, to conduct a specific investigation, and then showing that the guardian failed to conduct it, is strong evidence of bias [this is only true if the requested investigation was relevant and reasonable]. Assume a case in which the guardian observed the other party with the child six times but observed the client with the child only once. Absent other evidence the guardian may have some valid reason for this imbalance. However, if [well before trial] one sent the guardian an email noting this imbalance and asked the guardian to observe the client with the child again, and the guardian did not follow up, one now has an effective issue for cross examination:

• You observed the other party with the child six times but observed my client with the child only once.
• We asked you to address this imbalance by setting up a time to observe my client with the child again (here is where one would introduce that email as an exhibit)
• Despite this request, you failed to do so

As noted above, this method of impeachment requires advance planning. Typically one should provide the guardian a roadmap for the requested investigation–including specific issues to investigate, suggested methods of conducting this investigation, and contact information for the witnesses who should be part of this investigation–soon after the guardian is appointed. Even if the guardian does not provide a preliminary report, one can monitor the guardian’s billing statements, and check with one’s client and that client’s favorable witnesses, to determine whether the guardian is doing as requested. One can then remind the guardian if the investigation is not proceeding as requested. Showing that a guardian failed to conduct the [reasonable and relevant] requested investigation is some evidence of bias or ineptitude. Showing that the guardian’s failure wasn’t remedied after numerous written requests may actually convince the judge that this guardian was biased. For further information on this strategy read Handling a guardian ad litem who’s gone (too) rogue.

Merely complaining about a guardian’s report or showing discrepancies in the guardian’s investigation and report is unlikely to convince a judge to substantially discount that report. The above strategies are the best methods of limiting the impact of an unfavorable report and have the potential of convincing a judge of actual bias.

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