Guardians ad Litem

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Magaret Dore's article, Court Appointed Parenting Evaluators and Guardians ad Litem: Practical Realities and an Argument for Abolition, makes a good case for such professionals not providing opinions on the ultimate question to the court. In Kentucky divorce cases, there is no authority for the court to even appoint a GAL, of which I have ever been persuaded, yet it is done all the time. (Comments disagreeing are strongly encouraged. If I am unjustly criticizing the status quo, I will be the first to set the record straight.)

Adding to her reasons stated in the article, in an online discussion, Margaret said, " Also, I want to clarify, that I would not abolish an "attorney" for the child in the appropriate case. But the evaluators and best interests attorneys are essentially "mini courts," without the procedural protections.

Another way to look at it. Your own self-interest as a middle-aged to older person with money. If we do not get rid of these court surrogates in child custody, we risk facing them ourselves in the guardianship arena (railroad to guardianship/conservatorship--I see it all the time)."

Thanks, Margaret for permission to print and comment. Read on for a summary of Margaret's suggested objections to such appointments. While not KY specific, you'll get the idea.

"F. Suggested Objections

The following are suggested objections against parenting evaluators and guardians ad litem.

1. The opinion is “not helpful” under ER 702. See Stamm, 121 Wn. App. at 838:

The testimony of a [guardian ad litem] must be carefully evaluated to ensure it is indeed helpful to the fact finder. An opinion formed on inadequate or unreliable grounds cannot be helpful

2. Hearsay. See: ER 802, Stamm, Toms v. Toms, supra.

3. The evaluator/guardian ad litem has not qualified as an expert. See: Heistand v. Heistand, 673 NW.2d 541, 550 (Neb. 2004), but see: Stamm, 121 Wn. App. at 837 (approving guardians ad litem as nontraditional experts).

4. MMPI/Psychological (profile) testing is unfairly prejudicial. See: Marriage of Luckey, 73 Wn. App. 201, 208, 868 P.2d 189 (1994) (“the use of profile testimony is unfairly prejudicial”).

5. Opinions on credibility are inadmissable. See: Stamm, 121 Wn. App. at 839 (“a [guardian ad litem’s] subjective assessments of credibility are irrelevant”); and State v. Carlson, 80 Wn. App. 116, 123, 906 P.2d 999 (1995):

[N]o witness may give an opinion on another witness’ credibility. . . . An expert opinion [on credibility] will not “assist the trier of fact” . . . because there is no scientific basis for such an opinion save the polygraph, and the polygraph is not generally accepted as a scientifically reliable technique. (Emphasis added; footnotes omitted).

6. Speculation. Some reports contain a recital that test results are “only hypotheses,” i.e., an admission that the results are speculative and therefore inadmissible. Cf. Roccobono v. Pierce County, 92 Wn. App. 254, 268, 966 P.2d 327 (1998) (expert opinion disallowed where based on assumptions for which there were no factual basis).

7. Relevance and ER 403. An evaluator may concede that a personality diagnosis has little correlation to parenting. If so, admissibility may possibly be blocked due to lack of relevance or ER 403 (“[a]lthough relevant, evidence may be excluded it its probative value is substantially outweighed by the danger of unfair prejudice . . .”).

8. Bias. Bias may be a possible objection where the evaluator/guardian ad litem did not engage in a “balanced and impartial investigation.” Pirayesh v. Pirayesh, 359 S.C. 284, 596 S.E.2d 205 (2004)

9. Improper delegation of judicial function. See: Hastings v. Rigsbee, 875 So.2d 772, 777 (Fla.2d DCA 2004) (reversing because the trial court delegated its authority to the “parenting coordinator” who improperly acted as finder of fact).

10. Due process

11. Noncompliance with the GALR’s "

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