Balancing Privacy And Transparency In Guardian Ad Litem Investigations

Summary

Guardians ad litem must balance the privacy rights of parents and children with the need for transparency in their custody investigations. While laws and court rulings vary, best practices include limiting the scope of investigations, informing parties, allowing review and comment, protecting sensitive data, and providing clear reasoning for recommendations.

Introduction

In contentious child custody cases, courts often appoint a guardian ad litem (GAL) to represent the best interests of the child. The GAL conducts an independent investigation, interviewing the parents, children, and other relevant parties, and makes a recommendation to the court regarding custody and visitation arrangements that would be in the child's best interests. This puts the GAL in a unique and challenging position, balancing the privacy rights of the parties with the need for transparency in the investigation process.

On one hand, parents going through a custody battle have legitimate privacy concerns. They may not want every aspect of their personal lives and relationships examined and laid bare in court filings and public hearings. Children in particular need to feel they can openly share sensitive information with the GAL without it being disclosed. There are also safety considerations in cases involving domestic violence or abuse allegations.

On the other hand, transparency and disclosure are essential to the integrity of the legal process. Litigants have a due process right to review and challenge evidence used against them. If GAL reports and files are completely sealed, it creates a "black box" where custody recommendations emerge with no accountability. Judges also need a clear record to make sound rulings. The GAL is tasked with striking a delicate balance between these competing demands for privacy and transparency.

Relevant Laws & Legal Precedents

Laws governing GAL investigations and reports vary by jurisdiction, but most allow for a degree of confidentiality in the process. The Uniform Marriage and Divorce Act (UMDA) used as a model by many states specifies that a GAL's file is considered confidential and not open to public inspection. Only the court, the parties and their attorneys typically have access.

However, the UMDA and similar state laws also grant judges broad discretion to decide what GAL records are admitted into evidence and thus become part of the public case file. In camera review, where the judge privately examines records to determine relevance, is commonly used. But judges have ruled inconsistently on these matters.

In the Pennsylvania case Leber v. Leber, a father appealed after the trial court admitted the entire GAL file into evidence, arguing it contained confidential medical and psychological records. The Superior Court affirmed, finding no abuse of discretion. But in Marriage of Bates in Colorado, an appeals court held that a GAL file was confidential and should only have been partially disclosed.

At the federal level, the Supreme Court has recognized a constitutional right to privacy in child-rearing in cases like Troxel v. Granville. Some argue this should limit the scope of GAL investigations. But the Court has not extended privacy rights to family court discovery and evidence rules. In general, courts try to shield sensitive data like medical records, but give GALs and judges wide latitude otherwise.

Perspectives of GALs, Parents, and Experts

Guardians ad litem often struggle with ambiguity around privacy boundaries in their work. In a 2020 article for the American Bar Association, Vermont attorney Penny Benelli described it as a "tightrope walk," noting that even the GAL appointment order is typically not confidential. She advises GALs to be as transparent as possible, informing parents upfront what information they will gather and how it may be used.

Many parents feel the GAL process is an invasion of privacy. Commenting on a 2019 Boston Globe article critical of GAL overreach, a mother wrote: "My GAL wanted my entire life history, access to all my medical records... it was an overreach and violation of my privacy." Fathers' rights groups argue GALs are biased and often "dig for dirt" rather than focusing on relevant facts.

But Cynthia Grover Hastings, a Boston family law attorney and GAL, counters that comprehensive investigations are needed to inform custody recommendations: "It is not unusual that I am provided with stacks of text messages, visitation logs, photographs, and other documents...all of which I must review carefully." She says GALs can be trusted to filter out irrelevant personal information.

Judicial oversight is key, argues Aaron Robb, a forensic psychologist and GAL expert. He recommends that GALs be required to get court approval before accessing sensitive records or conducting psychological assessments. Regular status hearings allow the court to "provide guidance to the GAL and the parties as to the necessity and scope of such assessments."

Best Practices for Balancing Privacy and Transparency

Based on research and expert consensus, the following are some best practices for GALs to properly balance privacy and transparency in investigations:

1. Limit scope of investigation to custody-relevant facts. Don't pursue overly broad searches into the parents' backgrounds, medical history, or other sensitive personal matters without good reason. If unsure, request court guidance before proceeding.

2. Inform parties up front about the process. Explain what information you will be gathering, from what sources, how it will be used, and who will have access. Provide a written summary. Get signed releases for protected health information.

3. Give parents and counsel ability to review and comment. Before completing your report, let parties inspect your file (minus confidential child interviews) and respond to negative information. Note their objections or explanations in your report for transparency.

4. Redact sensitive personal data from public court filings. Work with the court to redact or seal sensitive details like account numbers or health histories that are not directly relevant. File full versions under seal for the court's review if needed.

5. Protect children's privacy and confidentiality. Assure kids their conversations are confidential (within mandated abuse reporting laws). Don't reveal identifying details in public filings. Summarize insights without verbatim quotes.

6. Advocate for in camera review of disputed files. If parties object to information being made public, request that the judge first review it privately to determine relevance before admitting some or all into evidence.

7. Provide clear reasoning and factual basis for recommendations. GAL reports should show your work, not just your conclusions. Tie recommendations to specific findings. This promotes transparency and accountability.

Conclusion

Balancing privacy rights with transparency is an ongoing challenge for guardians ad litem in child custody investigations. Total confidentiality is not realistic or desirable, as evidence must be disclosed for due process and judicial review. But nor should GALs pursue an unrestricted inquisition into family affairs under the guise of serving a child's best interests.

The most effective GALs use a scalpel, not a sledgehammer, in their fact-finding. They give parents notice and voice, while still maintaining necessary discretion. They work collaboratively with counsel and the court to determine reasonable boundaries. Most critically, they act as zealous advocates for the privacy and protection of the children at the center of these difficult cases. Only by properly balancing accountability and sensitivity can GALs fulfill their duty to inform custody decisions.

References

• Uniform Marriage and Divorce Act (UMDA) - specifies that a GAL's file is considered confidential and not open to public inspection
• Leber v. Leber (Pennsylvania case) - a father appealed after the trial court admitted the entire GAL file into evidence, but the Superior Court affirmed, finding no abuse of discretion
• Marriage of Bates (Colorado case) - an appeals court held that a GAL file was confidential and should only have been partially disclosed
• Troxel v. Granville (US Supreme Court case) - recognized a constitutional right to privacy in child-rearing, but has not extended privacy rights to family court discovery and evidence rules

For more insights, read our Divorce Decoded blog.