The guardian’s questionnaire is additional interrogatories

While not thought of as such, the guardian’s questionnaire is akin to additional (child-custody related) interrogatories. As an example, the current questionnaire of a local attorney/guardian, S. Maria Averill, whose work I greatly respect follows:

Download (DOCX, 24KB)

Admittedly such questionnaires are not answered under oath. Still, inaccurate responses or responses that trash the other parent or that parent’s family are valid impeachment material. It’s not as though the party providing the responses can credibly argue that he or she was unconcerned with the responses’ accuracy when submitting them to the guardian. Often a party’s responses contain material inaccuracies and omissions that can be used for impeachment. Often these responses convey a much more hostile attitude to the other parent or that parent’s family than that party is conveying in discovery responses, affidavits, and testimony. Responses to questions about parental fitness or each party’s respective strengths and weaknesses as a parent are especially telling. In those situations, the response to the guardian’s questionnaire can be used to demonstrate that party’s real attitude to the other parent (and, in closes cases, that negative attitude can be a deciding factor).

That responses to a guardian questionnaire can provide useful impeachment material leads me to do two things in every custody case in which the guardian has issued a questionnaire. First, get the other party’s response to the questionnaire shortly after the parties have provided them. This is especially important in cases in which the court has asked the guardian to do an expedited preliminary investigation and set a review hearing on custody. Knowing the other party’s responses prior to a review hearing or custody trial enables one to ask the guardian to conduct follow-up investigation that may uncover material inaccuracies or omissions in that party’s responses. It also allows one to highlight these inaccuracies or omissions to the court. Finally, it potentially allows one to demonstrate the other party’s negative attitude towards one’s client.

Second, understanding that the other party may get one’s own client’s responses, one should review every client’s responses before submitting them to the guardian. Part of the review should be for accuracy and thoroughness. Part of the review should be to scrub the responses for unnecessary bashing of the other parent and that parent’s family. While it’s fine to note in the questionnaire responses concerns regarding the other parent and that parent’s family–especially concerns the client wants the guardian to investigate–this information should be conveyed factually and with little or no editorializing.

For example, if there is concern over the other parent’s alcohol use, the questionnaire should note this concern and explain the basis for this concern. This is better that simply having the client write, “the other parent is a drunk.” “The children hate their father” is much better expressed as “the children do not enjoy visiting their father” or “the children are not closely bonded to their father.”

There’s rarely a case in which the other party’s responses to the guardian questionnaire do not provide useful information for suggesting follow-up investigation and for impeachment at trial. Thus, it should be routine practice to request a copy of the other party’s questionnaire responses from the guardian. Further, understanding that the opposing party and the trial judge may eventually see one’s own client’s responses to these questionnaires, one should always review draft responses before they are sent to the guardian.

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