Balancing Privacy And Transparency In Guardian Ad Litem Investigations

Summary

Guardian ad litems must carefully balance privacy and transparency when investigating child custody cases. By explaining their role, obtaining authorizations, conducting interviews discreetly, and focusing on the child's best interests, GALs can protect sensitive information while ensuring the court has the facts needed to make informed decisions.

Balancing Privacy and Transparency in Guardian Ad Litem Investigations: A Step-by-Step Guide

In child custody cases, courts may appoint a guardian ad litem (GAL) to represent the best interests of the child. The GAL conducts an investigation, interviewing the parents, child, and other relevant parties. They then make a recommendation to the court regarding custody and visitation arrangements that would be in the child's best interest. This puts the GAL in a delicate position of balancing the privacy rights of the family with the need for transparency in the court process.

GALs must walk a fine line between protecting sensitive information and creating an open, transparent process that the parents and court can trust. Here is a step-by-step guide for GALs to strike the right balance:

Step 1: Explain Your Role and the Process Up Front

At your first meeting with the parents and child, take time to thoroughly explain the GAL's role, the court process, and what information you will be gathering. Emphasize that you do not represent either parent, but are an independent advocate for the child. Share the general process you will follow, who you will be contacting, and the type of information you will consider.

Stress that you will keep information confidential when possible, but that all relevant facts must be shared with the court so the judge can make a fully informed decision. By setting expectations from the beginning, you build trust and openness.

Example: "As the GAL, my role is to gather information to help determine the parenting arrangement that would be best for your child. I'll be speaking with both parents, your child, family members, teachers, doctors, and others who may have insight. Rest assured, I will handle sensitive information discretely. But the court will need all key facts to decide what's best for your child."

Step 2: Get Authorizations and Releases Signed

Have the parents sign any necessary releases and authorizations early in the process. This may include waivers allowing you to access the child's medical, mental health, and school records, or to speak with doctors, therapists, and teachers.

Explain that these records and discussions will be kept confidential to the greatest extent possible, and will only be referenced in your report as needed to support your recommendations. The authorizations demonstrate the parents' commitment to an open, cooperative investigation.

Step 3: Conduct Interviews Individually

Interview the parents, child, and others individually rather than in a group setting. This encourages parties to be more forthcoming. They may be reluctant to share sensitive information in front of the other parent or family members.

Hold the interviews in a private setting and stress that you will keep the discussion confidential unless the information is essential for the court to consider in determining the child's best interests. Don't promise absolute confidentiality, but reassure the party that you will be discreet and only disclose when truly necessary.

Step 4: Be Discreet in Your Report and Testimony

When writing your report and recommendation for the court, only include identifying details and sensitive information as necessary to support your conclusions. Be cognizant of the parties' privacy.

If a private fact is not material to the custody decision, do not include it. If you can make your point in a general way without revealing confidential specifics, do so. For example, instead of stating that a parent is seeing a psychiatrist for depression, you might say they are getting mental health treatment and following all recommendations, and leave it at that.

On the other hand, some very personal information may be highly relevant. Serious untreated substance abuse or a child's disclosure of abuse would likely need to be relayed in detail. The best interest of the child is paramount. Use your judgment and consult with the court if unsure.

Step 5: Allow Parties to Read Your Report in Advance

If possible, let the parents and their attorneys read your report before filing it with the court, with the understanding that it is confidential and not to be shared until officially submitted.

This gives them a private opportunity to process the contents and raise any concerns about sensitive disclosures. They may have a valid privacy concern you had not considered that causes you to modify how certain information is presented. Providing a preview can head off battles over the report, increasing transparency and trust.

Step 6: Ask the Court to Seal Sensitive Records

In some cases, very personal records like medical or mental health files should not be publicly available in the court file. Ask the court to allow you to file those records under seal, with access limited to the judge and attorneys.

This protects the family's privacy while still giving the court the information it needs. Most judges will agree to seal highly sensitive records in cases involving children. If questioned, be prepared to argue that the child's best interests are served by keeping the records confidential.

Step 7: Provide Updates With Discretion

During the investigation, the parents may want periodic updates. Provide general status reports, but be wary of sharing specifics prematurely. You can let them know you have conducted certain interviews or obtained records without revealing all the details.

The parents do not need to know every fact immediately. It's better for them to read your findings and conclusions holistically in the report. Dribbling out bits of information piecemeal can lead to escalating tensions and efforts to influence your investigation. Politely remind them that you will share your full report when the investigation is complete.

Step 8: Explain Your Reasoning

Parents are more likely to accept your recommendations if they understand your rationale. In your report and testimony, don't just state your conclusions, but explain how you arrived at them. Walk through your fact-gathering process and analysis.

Even if a parent dislikes your recommendation, they will be more trusting of the process if they see that it was thorough, fair, and considered all perspectives. Transparency about your deliberations also assures the court that your investigation was unbiased and your conclusions reliable.

Step 9: Focus on the Child

Continually remind all parties that the focus should be on the child's welfare, not the parents' disagreements. If a parent pushes for the release of the other's personal information out of spite, bring the conversation back to how it will impact the child.

Encourage the parents to be open, but not to weaponize irrelevant private information against each other. Stress that the court will look poorly upon a parent who seems to be invading privacy and creating drama rather than prioritizing the child's well-being.

Step 10: Set Boundaries and Seek Court Direction as Needed

If a parent continuously hounds you for confidential information or tries to block your access to records, set firm boundaries. Have a script ready to reinforce the importance of a thorough, independent investigation to determine the child's best interests.

If the behavior persists, inform the parent you will need to raise the issue with the court. Follow through if necessary – ask the judge to remind the parent to cooperate with the GAL's investigation and information-gathering process.

In extreme cases, a parent's efforts to hinder the GAL's work may be held against them. The court may infer that they are trying to hide something unfavorable. So it's best for parents to respect boundaries and work with the GAL, even if the process sometimes feels intrusive.

GALs play a difficult but essential role in child custody matters. By following these steps, GALs can conduct thorough, reliable investigations while being sensitive to the family's privacy. Providing transparency about the process, using discretion in handling personal information, and keeping the focus on the child's welfare will help balance everyone's interests.

References

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