by Diane Woods, Huff & Woods, P.C. | Jan 19, 2022 |
NOTE: For the convenience of the reader, Georgia’s Uniform Superior Court Rule 24.9(6), governing the GAL’s written report, is provided throughout the body of this article.
The preface of USCR 24.9(6), Written Report, states as follows: Unless otherwise directed by the appointed judge, the GAL shall submit to the parties or counsel and to the Court a written report detailing the GAL’s findings and recommendations at such time as may be directed by the assigned judge. At trial, the report shall be admitted into evidence for direct evidence and impeachment purposes, or for any other purposes allowed by the laws of this state. The court will consider the report, including the recommendations, in making its decision. However, the recommendations of the GAL are not a substitute for the court’s independent discretion and judgment, nor is the report a substitute for the GAL’s attendance and testimony at the final hearing, unless all parties otherwise agree.
It has been the author’s experience that judges can and do interpret the provisions of USCR 24.9 differently. That is their prerogative. Unless the GAL routinely practices before a judge or can confer with a trusted colleague who does, it is best not to assume what is expected by the judge. Before embarking upon an investigation, much less a written report, it is highly recommended that the GAL become familiar with the judge’s expectations.
A well-written report can become a tedious, time-consuming, and expensive process. If a trusted colleague is not available to answer questions about the Court’s expectations, the GAL should consider reaching out to the staff attorney or administrative assistant to ask important procedural questions, such as the requirement that the report be written and not oral, how the written report should be delivered (in person, email or U.S. Mail), the deadline for the report’s submission, and what the judge expects to see included in a report. Although USCR 24.9(8)(f) prohibits ex parte communications between the GAL and the Court, procedural questions of a general nature asked of the judge’s staff, seem to be permissible. If in doubt, ask the judge’s staff first if such conversations, without inclusion of counsel for the parties, are allowed.
The GAL may be surprised to learn that the judge neither requires nor expects a written report. The Court’s staff may, however, ask the GAL to confirm with counsel that they do not want a written report.
It is recommended that all communications between the GAL and counsel regarding the report be in writing and should confirm that the judge does not require a written report and that counsel waives the writing of a report. It would be appropriate to include the staff attorney on this communication. If one attorney requests a report and the other attorney does not, a conference call with the judge and counsel may be required to clarify who will pay for the report.
In the event one or both attorneys are replaced prior to trial, the GAL can prevent future misunderstandings by writing to the new attorney and advising them as to what has been decided regarding the written report. It cannot be assumed that new counsel has been provided this information by their predecessor.
In those cases where a written report is required by the judge, the GAL may consider negotiating a separate retainer for the writing of the report, particularly if the report will be lengthy. A thorough report can easily cost thousands of dollars, causing sticker shock for an unprepared party.
Many GALs explain in engagement letters (sent to counsel) and in questionnaires (sent to the parties) that the judge will not “rubber stamp” the GAL’s report and recommendations. It is advisable that the GAL reiterate this to the parties throughout the investigation as they may be receiving contrary advice from well-meaning but misinformed friends, families, and the internet. This may help lessen the parties’ expectations of the GAL and put the responsibility for final custody decisions where it legitimately belongs.
24.9(6)(a), Contents of Report: The report shall summarize the GAL’s investigation, including all sources the GAL contacted or relied upon in preparing the report. The GAL shall offer recommendations concerning child custody, visitation, and child-related issues and the reasons supporting those recommendations.
As this rule suggests, the report should be a summary. It has been this author’s experience that judges appreciate concise reports. A GAL’s initial conversation with Court staff as to what the assigned judge expects in a written report can be invaluable when it is time to draft the report.
A typical report begins with the style of the case. Immediately below this, the GAL may want to include the following language:
As pertains to the Report of the Guardian ad Litem, the Uniform Superior Court Rules for the State of Georgia state the following:
Rule 24.9(b): The Report [of the Guardian ad Litem] shall be released to counsel (including counsel’s staff and expert(s)) and parties only and shall not be further disseminated unless otherwise ordered by the Court.
Rule 24.9(d): Any unauthorized dissemination of the Guardian ad Litem’s Report, its contents or the contents of the Guardian ad Litem’s file by a party or counsel to any person, shall be subject to sanctions, including a finding of contempt by the Court.
PURSUIT TO RULE 24.9(6)(E), THE GUARDIAN AD LITEM REQUESTS THAT THIS REPORT BE FILED UNDER SEAL AS IT CONTAINS CONFIDENTIAL INFORMATION THAT SHOULD NOT BE AVAILABLE TO THE PUBLIC.
With the inclusion of the above language, no authorized reader of the report can claim they did not know the rules.
Following this language, the GAL usually provides a brief introduction to the family, providing such relevant language as the names and ages of the children, where they attend school, with whom they are presently living, the names and ages of the parties, their marital status, how long they were married, etc. A summary of the issues to be determined should also be provided.
It is much easier to include bullet points of the GAL’s efforts in gathering information than to write a long narrative. One such example follows, which includes the activities undertaken and the names of those with whom the GAL spoke in order to formulate a recommendation. (Note: The names provided below are a product of the author’s imagination and are not taken from an actual report.)
Following the initial mailing to the attorneys in this matter, the GAL did the following:
1) Reviewed the parties’ completed questionnaires;
2) Conducted initial meetings with the parties in the GAL’s office;
3) Participated via email, text and telephone calls with the parties’ counsel;
4) Spoke with those individuals (e.g., friends, family, associates) that each party had telephone the GAL as references per the GAL’s protocol. Those individuals were:
a) Jane Doe, the parties’ next-door neighbor,
b) Susan Smith, the mother’s best friend, and
c) John Jones, the father’s best friend.
5) Called or zoomed with collateral professionals:
a) William Wiseman, PhD, the father’s therapist,
b) Betty Smart, LCSW, the mother’s therapist,
c) Ima Helper, the child’s nanny, and
d) Reverend Alexander Hamilton, the parties’ minister.
6) Traveled to Elmhurst Elementary school and spoke with the child’s teacher, June Cleaver, and the school principal, Billy Leeder and reviewed attendance reports, conduct reports, and grades;
7) Visited with the child in each parent’s home;
8) Reviewed emails sent to the GAL from both parties;
9) Periodically reviewed Our Family Visits entries by the parties;
10) Attended the parties’ mediation and temporary hearing; and
11) Communicated with the parties’ attorneys via telephone, email, text and in-person, participated in discussions regarding consent orders and pleadings, reviewed letters from counsel and responded, as necessary.
It is recommended that the GAL ensure that their time sheets and the enumeration of their investigatory efforts (as shown above) reflect the same information. Accuracy and consistency reinforce the GAL’s credibility.
The most critical portion of the GAL report is that section dealing with the GAL’s recommendations concerning child custody, visitation, child-related issues, and the reasons supporting those recommendations. If the case is not settled and goes to final trial, the GAL should anticipate lengthy cross examination on these points. This does not always happen, however, if the GAL has provided a thorough and well-reasoned explanation of the basis for their recommendations. Many GALs also attach to the Court report their proposed parenting plan which addresses specific concerns regarding the children, such as a graduated parenting schedule based upon the special needs of a young child. These proposed parenting plans often serve as a blueprint for the Court’s ruling.
In making an oral report to the Court, especially when no written report has been required, it is critical that the GAL’s file be so well-organized that information regarding the GAL’s activities, the names and contents of conversations with each lay reference and professional service provider, and psychological and other reports are readily accessible to the GAL to support their testimony.
24.9(6)(b), Release of Report to Counsel and Parties: The Report shall be released to counsel (including counsel’s staff and experts) and parties only, and shall not be further disseminated unless otherwise ordered by the Court. Many GALs include this provision verbatim at the beginning of their written report (as shown above) as a reminder to counsel and the parties of the confidential nature of the information disclosed in the report. While prudent attorneys advise their clients of this provision, all or portions of the GAL Reports occasionally appear on the internet and in the hands of less than scrupulous non-parties. This information could potentially be read by the parties’ children and others who have no rightful expectation of receiving this information. The GAL must also be circumspect in not providing the report to the parties’ or the children’s therapists or other individuals who are well-meaning and intent on helping the child or family. The report can only be released to specified others by Order of the Court.
24.9(6)(c), Release of GAL’s File to Counsel: If ordered by the Court, the parties and their counsel shall be allowed to review and/or copy (and shall pay the cost of same) the contents of the GAL’s file. The author considers the GAL’s file to belong to the Court The GAL is the Court’s investigator and the file’s safekeeper. It is not the position of the GAL to object to or agree to the release of the file, as that is totally within the Court’s purview. If, however, the file contains information that could legitimately jeopardize the child’s safety and well-being, it is the GAL’s responsibility to so advise the Court, through proper channels. If counsel is successful in their arguments for the release of the file’s contents, the GAL should promptly comply with the terms of the Court’s Order. The GAL should never voluntarily provide any information from the file to counsel, their staffs, their experts or their clients.
24.9(6)(d), Unauthorized Dissemination of GAL’s Report and Contents of File: Any unauthorized dissemination of the GAL’s Report, its contents or the contents of the GAL’s file by a party or counsel to any person, shall be subject to sanctions, including a finding of contempt by the Court. If the GAL learns of an unauthorized dissemination of all or part of the report, it is the GAL’s responsibility to advise the Court, through proper channels, of their knowledge of this violation.
24.9(6)(e), Sealing of Written Report: If filed, the Report shall be filed under seal by the Clerk of Superior Court in order to preserve the security, privacy and best interests of the children at issue. Many GALs include this provision verbatim at the beginning of their written report (shown above) as a reminder to counsel, the parties, and the Clerk of the confidential nature of the information disclosed in the report.
In closing, it is highly recommended that the GAL complete the written report several days ahead of the judge’s deadline, so that it can be re-read and re-edited prior to its submission. Grammar and spelling count and are evidence that the GAL is invested in providing the Court with a quality report.
© 2022 Diane Woods. No part of this article may be reproduced in any form, in any media, without the express written consent of the author, DIane Woods.