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.

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

  1. Tammy says:

    How do I obtain the gal report

    1. Deana Brandon says:

      The Guardian ad Litem is required to give your attorney a copy prior to your court hearing. If you are Pro se then the Guardian ad Litem is required to provide you and the opposing party a copy simultaneously. If this is a previous case, you would have to go to the Clerk of Court in the County that had jurisdiction and with the case number and a valid I.D. you can request to review the case. In the case file the guardian ad litem report should be in it, unless the case was sealed. If you want a copy you will be required to pay for it.

  2. Summer Norris says:

    I was wondering how to respond the the GAL’s report that CLEARLY states lies, also the GAL completely and knowingly lied in court under oath and told my parent child advocacy program worker that she might get wrote up after I called her out about lying in front of the Judge who said or did nothing as well as my sister who is fighting me for custody of my daughter allowed her to lie to. This GAL has directed my sister to alienate me from my child using covid19, demanding I take a covid test in order to see my child, as well as ending any virtual visits with my daughter after I had a dirty ua when I was unable to go to treatment due to the GAL reporting my daughter had covid to my treatment center who said I had to get a negative test before I was able to continue treatment. The GAL also violated my HIPPA with getting my private group session information what I said or did in my groups. I signed an ROI for status report/UA’s to be reported to GAL and she took it further. What do I do about all that? My email is NORRIS38sm@gmail.com if you can help in any way. Thank you for your time.

  3. Sarina says:

    The GAL I currently have lied bon her list of people she interviewed, my children, and the first GAL, she has never interviewed them. Her whole beginning statement is totally inaccurate, which if she had read the docs she listed she reviewed then that statement of hers would not be so inaccurate, The rest of her report is mostly inaccurate as well and all can be proven with actual court docs. The last court hearing and order lists her report as one of the determining factors yet I was unable to view her report and lies (all which can be proven with actual court docs) until afterwards. Even now she is trying to go outside of any court order and putting more “demands” on me that are NOT court ordered but she thinks they are, but I promise are not. What recourse can be taken. Oh and NOT ONE FAVORABLE thing about us is in her report, and that is without ever seeing us, speaking to us or interviewing the people she claims to have who would.say very nice things about us and are willing to testify she never spoke/interviewed them.

  4. Lisa Stamblesky-Butler says:

    Is there some sort of data bank that that contains basic generic information on GALs and how they’ve responded to their assignments? The only information I was given about the GAL assignment to my case was “she’s a good GAL” no record of how she’s worked in the past, no indication of any biases she may have carried. As my case progressed, it became evident that this woman did, indeed, carry personal bias towards certain demographics of parents of the children she had been assigned to oversee. When I changed counsel, my new attorney expressed an obviously negative opinion without verbally stating as much. Body language speaks volumes. Furthermore, I encountered another individual who had this woman as a GAL on their case, and this individual was singing her praises for taking their side on their case. While I do not know the details of that case, from what little bit I was able to learn, there were very similar circumstances to my own.

    Finally. At the culmination of my case, and after receiving her invoice for services, I refused to pay her, cited why and invited a hearing from the court to discuss the reasons why I would not be paying her fees. I had included a variety of documented incidences of bias that may or may not fall under the guidelines, one of the biggest being her acceptance of gifts from my former spouse during a home visit. Not limited to that, her declining to consider a rescheduling of visitation to a time where I would actually be able to visit with my children, and also her decision not to consider an investigation that had been performed by JFS less than 6 months prior to the divorce filing. (requested by the school counselor and which focused on the other party’s behavior toward the children which did not give a favorable opinion of him)

    While this woman sat on the board of a battered woman’s shelter, she either failed to see, chose to ignore, or was not familiar with the obvious signs of emotional abuse I was exhibiting at that time. Moreover, and this makes absolutely no sense whatsoever, perhaps this is just SOP for domestic cases? She refused to take into consideration the relationship I had with my children for the 12 years prior to the divorce, refused to consider PAS may be present during the divorce. Ultimately, I lost my children and while my actions during the divorce, the personality issues I was exhibiting after leaving an abusive marriage were very fresh, not easily controlled, I do not believe her actions were in the best interest of the children, but more in line with the fact that she “liked” him more than me.

    This is why I’m interested in learning about any system of oversight in place to determine how a GAL has ruled on previous cases, whom the GAL tends to favor, any personal experience previous parties have had with the GAL, so that future parties can have a better idea of the GAL they are being asked to install to determine the best interest of their children. Divorce is not an easy time for any involved with exception of the attorneys, especially contentious divorce.

    PS. After several years, I was successful in having this woman removed from my case, having a new GAL installed. However, by that time, the damage from the PAS the original GAL refused to consider had been done. I don’t want the destruction of my family to have been in vain.

  5. Adem tisdale says:

    We have a case in Mississippi/Perry County in NEW AUGUSTA. THE GAL HAS BEEN AGAINST US FROM THE VERY BEGINNING. SHE HAS BAD REVIEWS ON HER FACEBOOK. AND HAS REPEATEDLY SAID I AM A DRUG ATTIC. SHE HAS NEVER BEEN TO ANY OF OUR VISITS WITH OUR CHILD AND SHE HAS BEEN DIGGING IN MY PAST BUT THE PAST IS 11 years ago the mother has never failed a drug test and in 3 years i only had 1 false positive and then they drug tested me every week . She had Secret meetings with Dr. David Moore for play therapy and they would discuss how they were gonna adopt Emily to the foster parents we did the class court ordered CVS said we didn’t have to but we did it for our daughter and the doctor stated the baby needs a clean break from the foster parents as soon as possible The child has developed anxiety and sobs throws Tantrums and lashes out and acts up after she sees the biological parents the gal has never attended any of these meetings not on our visits or team meeting s and on her Facebook she promotes foster care. Her reviews on Facebook people paid for her service and she did nothing to help her clients she is completely BIASES AGAINST US. ALL REQUIREMENTS OF CPS HAVE BEEN DONE FOR OVER 2 1/2 years she has been using our past to adopt our daughter in to foster care I only have my little family AND SHE IS TRYING TO DESTROY US AS A FAMILY. I STOPPED TAKING MY Prescription medication for COPD and prescription meds for pneumonia prescription cough syrup sinus pills in Zpack

  6. William F Nunn, Jr. says:

    I have a GAL report from Bruce Poore, out of York County, SC. It has absolutely nothing positive to say about me. I filed a motion to remove him with the court myself and have a court date of March 16, 2022 at 2:30pm.
    The documentation I have is too incredible to believe. Mr. Poore may have a good reputation around York County, SC but he seriously “dropped the ball” on this one.
    I will happily forward his report to you if you like. It is an excellent example of the corrupt family court system and “the system’s” willingness to remove a father from his nine children’s lives (yes they are all my wife and I’d children except the oldest. My wife had Emma before we met and I raised her as my own.)
    Thank you,
    William Nunn

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