In Massachusetts, the standard set by the legislature regarding custody (legal and physical) of minor children is what is in the children’s “best interest”. In highly contested custody cases, it is sometimes necessary to involve additional professionals to assist the Court in making this determination. Two types of professionals are Guardian Ad Litems and ARC attorneys.
Guardian Ad Litem
Guardian Ad Litems (GALs) are typically either mental health professionals who specialize in working with separating families or family law attorneys who have taken additional required training in order to act in this capacity. The appointment of a GAL can be requested by one or both of the parties or appointed by the Judge in her/her discretion. The role of the GAL is to determine what is in the best interests of the children and to provide the Court with a report regarding their investigation and their conclusion. The GAL speaks with the parties, the children and other collaterals (family members, friends, teachers, etc.). If a GAL wants to speak with the children’s therapist then a special GAL has to be appointed to determine whether or not the children’s therapist-patient privilege should be waived. The GAL’s report is available for the parties and attorneys to review at the courthouse. The GAL can be called to testify in court. Judges often given great deference to the GAL report.
The cost of the GAL is expensive and may range from $5,000 to $15,000 depending on the nature of the case. If the parties have assets or access to funds, the Court will often order the parties to share the cost equally. In some cases, the Court will designate that one party pay for the GAL in full or the parties share the cost but not equally. In some cases where the parties are unable to afford a GAL, the Court can appoint a GAL paid for by the Commonwealth. Another cost effective alternative is to have a Probate and Family Court Probation Officer (different from a Criminal Probation Officer) do an investigation and report to the Court.
An ARC attorney stands for “attorney representing children”. ARC attorneys are Massachusetts Family Law attorneys that take additional required training and volunteer to assist the Courts in this capacity. The attorney is a volunteer attorney appointed by the Court. An ARC attorney may be requested by one or both of the parties or appointed by the Judge in his/her discretion. Unlike a GAL who makes a recommendation as to the best interests of the children, the role of the ARC attorney is to represent the children and what they want. ARC counsel will speak with the children (aka their client(s)) and report back to the court what the children want and how they want the matters resolved between their parents. Since the ARC attorney represents the children, he or she cannot be called to testify in Court. The Court does recognize that what children want and what is in their best interests is not always the same. Nonetheless, it is important that the children’s voices be heard. The appointed attorney, with the Court’s permission, may have to use “substituted judgment” for the client who is younger in years and/or may have a more difficult time articulating his or her desires. Either way, ARC counsel is a very different role then the GAL in a case.
With respect to a custody dispute there are pro’s and con’s to engaging either types of professionals. At our office, Attorney Kellie L. Sanders serves as a Guardian Ad Litem in cases throughout the Commonwealth. In addition, Attorney Amber R. Cohen of our office serves as an ARC counsel throughout the Commonwealth. Please contact Cohen Cleary P.C. for further information to review your custody dispute.