What is a Guardian Ad Litem?

Q.    "I received a notice from the court that the judge has appointed two Guardian Ad Litems (GALs) on my matter. Why are TWO GALs appointed to my case? " A.    The two GALs will serve two separate, distinct, and apart roles and work independantly. The Massachusetts Courts have special procedures for determining whether a minor child’s psychotherapist/patient privilege will be waived or  preserved. The GAL appointed to do the waiver has a different role than the GAL appointed for the “best interests” of the minor child(ren). The role of the second GAL, or “privilege GAL” is to assess the value of the information held by the psychotherapist to the proceeding, and in certain cases, weigh the child’s need for privacy against the courts need for the information.  Mental health evaluators can provide valuable information for a GAL investigator. They can be well aware of clinical information such as whether the child is well settled in their current environment, or fears one of their parents. According to M.G.L. c233 § 20B(e), the patient/psychotherapist privilege does not apply in child custody cases where the judged determines “that the psychotherapist has evidence bearing significantly on the patient’s ability to provide suitable care or custody, and that it is more important to the welfare of the child that the communication be disclosed than that the relationship between patient and psychotherapist be protected”. The input of a psychotherapist can be relevant to the investigation and decision making process. Courts routinely grant the GAL broad access to children’s mental health records. The parents are generally the decision makers for their minor child’s health and have access to the child’s medical records, however, some courts have held that when the child is the subject of the litigation, the parents are no longer presumptive privilege holders for the child. As a result, psychotherapist/patient privilege is often fraught not only with therapeutic complications, but also with procedural requirements. This would be in cases of alleged child abuse or neglect where the Department of Children and Families (DCF) receives custody of the child and parents are seeking to gain custody back. It is also seen in the probate court where one parent is seeking custody over another parent in a divorce or other type custody matter.  If you don’t know what your legal rights are, you have no legal rights. If you have questions, do not hesitate to contact Attorney Seaver at 617.263.2633, or kevin@kevinseaver.com