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Probate and Family Court investigates

Produced by Massachusetts Law Reform Institute
Reviewed October 2020

Guardian ad Litem and Probation Office investigations

Sometimes a judge in the Probate and Family needs more information about your case before they can make a decision. The judge can order a Guardian ad Litem (GAL) or the Probation Office to investigate your case and file a written report at the court.

Some investigators may be asked to evaluate the facts they learn during the investigation or make a recommendation to the judge about what they think should happen in a case.

You will get to see the report at the court before it is presented to the judge. The judge sees the report when it is presented to them.

What does the Probation Office investigate?

A judge may refer you to a Probation Officer for an investigation if one of you says the other parent is not responsible, able to take care of your child, or might be a danger to you or your children.

This is different from dispute resolution.

A Probation Officer looks into serious issues like:

  • domestic abuse,
  • child abuse or neglect,
  • criminal behavior, and
  • alcohol or substance abuse.

The Probation Officer may also talk to people at your child’s school and visit your home.

They will look at your living space, the bathroom, the kitchen, where your child sleeps, and ask about anyone else who lives with you.

They can ask about your child’s health, your health and talk to medical providers. They may also speak with the Department of Children and Families.

It can take a probation officer a few weeks or more to investigate.

When the probation officer finishes their investigation they write a report. Sometimes the judge asks a probation officer for their recommendation. The report might talk about how cooperative you were. The probation officer is the “eyes and ears” of the court. Be respectful. Anything you say may be in the report.

A judge may also refer you to the Probation Office if you or the other parent cannot afford a private Guardian ad Litem.

What does a Guardian ad Litem investigate?

A judge may appoint a Guardian ad Litem (GAL) to conduct an investigation and report what they found out to the judge if:

  • One of you says the other parent is not responsible or able to take care of your child because of serious issues like domestic abuse, child abuse or neglect, addiction. or
  • The judge decides they need a GAL to do an investigation so they have enough information to make a decision in your case. or
  • You and the other parent cannot work out a custody, parenting time, or visitation plan on your own.

For example, a judge might appoint a GAL to investigate and recommend the parent who is best able to meet your child’s needs if your child has challenges like:

  • special educational needs,
  • developmental delays, or
  • mental health issues.

Or, a judge might appoint a GAL to investigate if one of you has habits or practices that harm your child’s health. These practices could be smoking if your child has any underlying health concerns or the way you discipline your child. The judge may also ask the GAL to name the parent whose habits or practices harm your child least.

Or, a judge might appoint a GAL to investigate if one of you has habits or practices that significantly improve your child’s wellbeing. These habits might be helping your child with their school work, supporting your child’s friendships, or responding to your child’s daily needs. The judge may also ask the GAL to name whose habits or practices are best for your child.

A GAL may investigate any of these issues, even if the judge does not ask them to.

The judge can appoint 3 kinds of GALs

  1. A GAL/investigator is often a lawyer who represents people in custody and visitation cases. Sometimes a GAL investigator is a mental health professional. A GAL investigator gathers information and reports to the court. A GAL investigator may make recommendations only if the judge’s appointment says they should.
  2. A GAL/evaluator is a mental health professional who uses their mental health expertise to make clinical recommendations. A GAL evaluator may make recommendations only if the judge’s appointment says they should. A GAL evaluator may not give professional assessments or conclusions unless they have the required expertise. The GAL evaluator gathers factual information and reports to the court. They are qualified to:
    • Interpret the information they collect, and
    • Give professional opinions to help the court make custody, visitation, or other decisions about the welfare of your child.
  3. Sometimes a GAL investigator or evaluator needs to speak with your child’s therapist. In that case, the judge can appoint a different GAL to decide if it is in your child’s best interest to give up their right to confidentiality with their therapist or counselor. This GAL investigates and decides if giving up your child’s right to privacy is better for your child than keeping those records private. This GAL must be a different GAL than the one whom the judge appointed to investigate, evaluate, or make recommendations in your case. Giving up the right to right to privacy is called ‘waiving’ that right. Keeping the right to privacy is called ‘preserving’ that right. The GAL who decides if it is best for your child to waive or preserve their right to privacyis always a lawyer.

Important

  • GALs are not lawyers or advocates for your child. They do not take sides in your family law case.
  • Nothing you say to a GAL is confidential. They can tell the judge anything that you or the other parent says.
  • A GAL who is also a mental health professional is a “mandated reporter.” Theymust report child abuse or neglect to the Department of Children and Families.
  • A GAL may be called as a witness if your case goes to trial.

What can I expect if the judge appoints an investigator?

The GAL or Probation Officer talks to both parents. They also talk to other people who know your child - relatives, neighbors, daycare providers and teachers. They may need your permission so that medical providers and, and the school can share information about your child with them. They may also talk with your child. They may also want to watch you and your child interact with each other.

The investigator reviews documents like your child’s school records, your health records, the other parent’s health records, your child’s health records, and the Department of Children and Families records.

Is it ever a good idea to ask for an investigation?

If you are afraid the judge will not learn the whole truth just from listening to you, the other parent, and your witnesses, you may need an investigation.

Before you ask for an investigation, think about the pros and cons.

You might need an investigation to:

  • Help you and the other parent focus on your child’s needs so you can agree on the best custody, parenting time, and visitation plans for your child.
  • Identify important facts that help the judge make the best custody, parenting time, and visitation orders for your child.
  • Give the judge other facts and information so they can figure out if:
    • the other parent is saying things that are not true just to make you look bad, or
    • there are issues the judge should know about.

You might need A GAL investigator or evaluator if you need them to give the judge their professional opinions and recommendations.

You may not want to ask for an investigation because:

  • You give up your privacy.

Investigators look into private matters. An investigator may: Ask you to share private details about your life, Ask you to share your medical or mental health records, or Recommend that the judge order you to get psychological or substance abuse testing.​

  • An investigator may not understand your case.

Investigators do not always understand the effects of prejudice, poverty, racism, domestic violence and substance abuse. They may be “experts,” but they may not fully understand all the issues you are dealing with.

  • An investigation may go against you.

Judges usually believe an investigator’s report. It can be harmful if an investigator:

  • Does not believe you,
  • Does not understand critical issues in your case, or
  • Makes recommendations that go against you.

You may not want a GAL investigation or evaluation because:

  • It is too expensive.

An investigation can be expensive. If your income is low enough, the judge can order the state to pay for an investigation. If your income does not qualify you, you may have to pay all or some of the costs yourself.

  • It can take too long.

Investigations and evaluations can last several months.

How do I ask for an investigation?

If you need the judge to appoint a GAL or Probation Officer to your case, file a motion, an affidavit and a proposed order.

In your Motion

Tell the judge:

  • You need the court to appoint someone to investigate issues in your case.
  • List the issues you need the investigator to look into.
  • You need someone who is fair and has no stake in your case to investigate those issues
  • The kind of investigator you need - a Probation Officer, GAL/Investigator, or a GAL/Evaluator. If you are not sure of the kind of investigator you need, tell the judge.
    • If you know the kind of investigator you need, tell the judge why you need that kind of investigator.
  • If you need a GAL tell the judge who should pay for the GAL.
  • If you cannot afford a GAL tell the judge - if you have already filed a financial statement that is still true, attach a copy of it to this motion.
  • If the other parent can pay for the GAL attach your copy of their financial statement

In your Affidavit

Tell the judge about events that show why these issues need investigation.

For each event you choose to write about, say

  • when it happened,
  • where you were,
  • where your children were and
  • what happened.
  • Include the effect each event had on your child.

Sign and date your affidavit “under penalties of perjury.” This means you swear that everything you wrote in this statement is true, as far as you know.

In your Proposed Order

Fill out your own Motion, an Affidavit and a Proposed Order

What if my child’s other parent asks for a GAL investigation?

Your child’s other parent can ask the judge to appoint a GAL investigator or evaluator also.

Sometimes the other parent asks the judge to appoint a GAL only to harass you. You can file an “Opposition” to their motion. If the other parent asks for a GAL just to make you leave work, spend money on the GAL, make the case take longer or does not explain their reasons, you have good reasons to oppose the appointment of a GAL.

In your Opposition explain that the other parent is askingfor a GAL investigation:

  • The judge does not need any more information than they already have, or
  • To make you spend money you do not have, or
  • To make the case take too long, or
  • Harass you in other ways.

Fill out your own Opposition to a Motion for a Probation Officer or GAL Investigation.

Mail your Opposition to the Court and to the other parent at least 4 business days before the hearing on the Motion to Appoint a GAL.

Who pays for an investigation?

If the judge appoints a Probation Officer to investigate, the state pays the cost.

If the judge appoints a GAL, the judge decides who will pay for the investigation. Sometimes parents split the costs. Other times one parent pays the entire cost. If you and the other parent cannot afford to pay for a GAL investigation, ask the judge to order the state to pay for it.

It does not matter who pays for the investigation. An investigator is supposed to be fair. Their job is to get information and recommend the best decisions for your child. They should not favor either parent.

GAL investigations and evaluations do not have a fixed cost. The cost is different from case to case. It can be $3,000 to $20,000. It could be even more.

How can I prepare to work with an investigator?

Put together information to help the investigator get started. You must give the other parent a copy of everything you share with the investigator.

Helpful information includes:

  • A written outline of the case. Include your opinions on the matters they will investigate.
  • Copies of court documents and orders from the case so they can understand what has already happened.
  • Copies of police reports, school records, medical records, restraining orders, and other papers you believe are important to understanding your case.
  • A list of relatives, teachers, therapists, medical providers, and daycare providers. Include people who think it is best for your child that you have custody. Write the full name for each person, their relationship to you, and their contact details. Some GALs may limit the number of relatives and friends they speak to. List the witnesses in order of who you think will give the GAL the most important information.

Things to remember

  • Talk to the people you are going to tell the investigator about before you give their names to the investigator.
  • Talk to the investigator as if you were talking to the judge – nothing you say to an investigator is confidential.
  • Judges pay a lot of attention to a GAL or a Probation Officer’s report.
  • You need to sign a release of information so the investigator can speak with people you have a confidential relationship with. You do not have to let the investigator speak with that person. But if you do not sign the release, a judge may think you are hiding something.

Will the GAL or Probation Officer give me a copy of the report?

GALs and Probation Officers file their reports in the courthouse. You do not get a copy automatically, but you can read the report at the courthouse.

If you have a lawyer, they can get a copy of the report. They can show you the report. But they need to file a motion to give you a copy. They must return their copy at the end of the case. If they withdraw from your case they must return their copy of the report to the court. If you get a copy from your lawyer, you must return it to the court at the end of your case.

If you do not have a lawyer, the only way for you to get a copy of the report is to file a motion that asks the court for a copy.

You are allowed to show the report only to experts you hire or talk to about your court case. You can give the expert a copy, but they must agree in writing:

  • not to show the report to anyone else,
  • not to make copies, and
  • to return the report to the court when the case is over.

 

When the case is over, you must return your copy of the report to the court.

What if I disagree with the investigator’s report or recommendation?

If you see information that is wrong and harmful to your case, write to the investigator. Give them the correct information or remind them to look at the information you gave earlier that conflicts with the report. Keep a copy of your letter.

If you disagree with the investigator’s report and recommendations, you will have to challenge them. To challenge, talk to a lawyer for help. The lawyer can:

  • Take the investigator’s “deposition.” The lawyer can question the investigator before you go to court. The investigator must swear that all their answers are true. Your lawyer will record the session. They can use the recording as evidence when you go to court.
  • Subpoena the GAL to a deposition and require them to bring all the documents they used.
  • File a Motion to Strike or Remove the investigator's report in whole or in part. You may want the judge to strike a recommendation.
  • Get you to testify in court about why the investigator is wrong. and
  • Subpoena and cross-examine the investigator at trial.

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