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GAL (Guardian ad litem)

Tuesday, April 15, 2003
12:30 pm - 2:30 pm
10 Winter Place, Boston, MA

Questions & Answers


Questions & Answers

Q. Are you seriously suggesting that fathers refuse to cooperate with GAL investigations in their divorce cases?
The Fatherhood Coalition recommends that all fathers take this action and refuse to cooperate. Whether individual fathers do or do not is a matter of conscience.

Let's not forget that this is a war we're in: the War on Fatherhood. In every war, sacrifices must be made. Each man must make their own choice, taking into account the very personal and real considerations of their own children along with the greater good of our society. There is clearly a risk for each father.

But realize this, if starting tomorrow every father in a new divorce notified the court that they would not cooperate with any GAL investigation, the courts would be forced to quickly--and finally--address their reprehensible treatment of fathers.

Q.  If there are no GAL investigations, how will the court know what is in the best interests of the child? Aren't GALs necessary to decide custody?
An investigation of the parents might only be needed if there is evidence that a parent poses a threat of real harm to the child. This is only true for a small fraction of cases.

Otherwise, there is no need for an investigation to determine which is the better parent. Why should there be? What a child needs more than anything else in the world is a mother and father that loves them. This doesn't change if the parents divorce. Children want to be with their parents, even when those parents are considered bad (perhaps even "unfit") parents by conventional standards. This was dramatically brought home in the recent Frontline television series where a child taken from an admittedly alcoholic, and allegedly occasionally physically abusive father, was visibly inconsolable weeks after he had been taken... pleading to be returned to his father.

The pitting of one parent against the other in a contest to prove who is slightly better or slightly worse is FUNDAMENTALLY FLAWED. There could not be a worse way to manage a family breakup.

If there is evidence that a parent poses a danger to his/her child, then that parent should be accused of a crime and afforded due process and criminal protections. If there is no crime, there can be no evidence, and there is no need for any investigation.

Otherwise, the parents must come to an agreement. If they can't come to an agreement over parenting, the court must mandate shared parenting. If one parent wishes to move far away, that parent forfeits their custody rights.

This will drastically cut down vicious custody battles, and will also go a long way toward reducing the divorce rate in general, once mothers realize the courts are no longer providing them with the option of simply throwing dad away. Parents in conflict will have an incentive to working through their problems.

Ref. Relevant CPF policy statement:

  1. CPF holds that following a family breakup the rights of both biological parents to the care and companionship of their children shall be held equal absent proven criminal behavior that has harmed the child[ren] in question.
Q.  If I am a father just entering divorce and custody is being contested, what exactly can I expect to happen to me as a result of refusing to cooperate with a GAL investigation?
The first thing to consider is the reaction of your attorney, if you are using one. He/she will undoubtedly try to talk you out of it, perhaps even refusing to continue to represent you if you insist on refusing to participate in the GAL investigation. That attorney is advising you with what he/she perceives to be your best interests in mind, but there is also a self-serving motive.

Because you will be openly defying the status quo, the judge will be prejudiced against you. This is unavoidable. But also, the judge will not be happy with the attorney who "allowed" their client to flout the court's method of doing business in custody cases. This jeopardizes the attorney's future practice.

Next, the GAL's final recommendation will not be in your favor. However, if you are a father engaged in a contested custody case, the chances that the GAL will recommend that you be given primary or shared physical custody of your children is about 1 out of 100. So, actually, there is practically no risk here.

On the positive side, since you didn't cooperate, you can make a case that you cannot be held financially responsible for any cost of the investigation.

The purpose of the GAL is to provide the legitimate, defensible grounds for the court to take custody of your children from you and make sure you become the financial provider for the "new" family that will not include you. The GAL report, with its recommendation for primary physical custody to the mother, gives the judge the plausible deniability he/she needs if the judgment is questioned, criticized or appealed.

The judge can then defend her judgment (to an appellate court, perhaps) as follows: "After all, an expert investigated all the parties and came to this conclusion. I found no problem with the report and implemented its recommendations."

By the way, judges do not always follow the recommendations of the GAL, but when this happens it is because the recommendation has not been favorable to maternal custody. Judges are not looking for ways to give fathers custody of their children – they are looking for the path of least resistance to awarding custody to mom. The GAL investigation and report is this "path of least resistance."

Now, the judge will be predisposed against you because of your refusal to go along with the program. It is likely that she will treat you more harshly. This is really the only place where there is a real risk to you. The judge may give you less visitation time than she would have otherwise, and/or punish you with an even higher child support obligation than provided for in the guidelines. Similarly, the judge may punish you in any other matters that are being contested, such as property issues.

You are fully within your rights to refuse to talk to a GAL, so don't let anyone intimidate you into believing that you are committing a crime or can be jailed.

Ref. Relevant CPF policy statements:

  1. CPF opposes the court-imposed use of any child specialists, guardians ad litem, psychologists, psychiatrists, therapists, or social workers to determine the "best interests of the children," or to influence or make any recommendation to the judge presiding over a custody case.
  1. CPF encourages all non-custodial fathers involved in custody litigation to advise their attorneys (if they use one) and the judge presiding over their case that they will not cooperate with any court-appointed GAL or other psychologically-based investigation.

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