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Massachusetts Analysis

In Massachusetts, a minor has various options for gaining access to the state's legal system without parental support or consent, of which the assistance of GALs is the most common and practical. The Massachusetts Rule of Civil Procedure 17(b) states that the court shall appoint a guardian ad litem for an infant who is not otherwise represented in an action. GALs are appointed in record numbers in the state's Probate, Family, and Juvenile Courts. In evaluating child abuse, neglect, or child custody, particularly in conjunction with allegations of substance abuse, domestic violence, or sexual abuse of a child, the courts become involved in the investigation of complex family dynamics and social histories, and a skilled GAL renders invaluable assistance to the trial court in making these assessments.152

Attorneys appointed as GALs have traditionally served in the capacity of ``next friend'' to represent the interests of a minor involved in juvenile or probate litigation.153

Appointment of counsel or a ``next friend'' GAL for a child is discretionary in the probate courts, unless the ``Probate Court judge contemplates an award of custody of a minor child to [the Department of Social Services] under Mass. Gen. Laws ch. 199 23(c) (2001).'' However, ``[w]here DSS is not a candidate for custody - the child is not entitled to counsel.''155 Discretion is usually exercised in favor of the appointment of a legal representative only in particular circumstances.156 For instance, in Benson v. Benson, 422 Mass. 698, 700 (1996), the Massachusetts Supreme Judicial Court affirmed that ``[m]inor children of divorcing parents should be represented by counsel or a Guardian ad Litem when said parties enter into [a] surviving agreement that is essentially non-modifiable-.''

Attorneys may also be appointed as investigator-GALs if the scope of the appointment is primarily a fact-finding mission or if there are legal issues intertwined with the ``best interest'' determination that are better addressed by an attorney with knowledge of the rules of evidence, including relevance, admissibility and hearsay.157 Such an attorney/GAL might also initiate legal action on behalf of the child.158 For example, in Matter of Walter, 408 Mass. 584, 584-585 (1990), the GAL attempted to bring a paternity action on behalf of the child to disprove the paternity of the mother's husband. The court ultimately denied the petition, not because it exceeded the scope of the GAL's authority, but because such a petition was found contrary to the best interest of the child.159

With the new Supreme Judicial Court guidelines in place, courts generally specify the issues to be addressed by the GAL. Individuals who serve as GALs have a variety of qualifications and the trial judge will select a GAL with expertise that meets the needs of the individual case.160 GALs may be lawyers, psychologists, or social workers, and some have training in more than one field.161 In many cases, the GAL plays an interdisciplinary role and is expected to generate a comprehensive investigative report that is both legally admissible and clinically defensible.162 As for confidentiality of GAL reports, the courts remain sensitive to the parties' need for privacy, and although ``the information in the [GAL] report is based primarily on documents which are not impounded and are part of the record,''163 it does not become a public document.164

Like in Washington, the new guidelines require Massachusetts courts to make the GAL appointments from a rotating list.165 In the context of attorneys accepting assignments to represent indigent clients, this practice ostensibly ensures equal access to cases by certified advocates and minimizes the appearance of judges favoring certain practitioners.166 In the context of GALs conducting custody evaluations, however, the need for particular qualifications of the GAL will doubtless result in judges departing from the rotating list in order to select GALs that meet the needs of individual cases.167 The parties' agreement as to a particular GAL is also likely to be honored, resulting in deviation from the rotating list.168

In sum, Massachusetts' GAL system is fairly well thought out. However, in the absence of concrete codification of the procedures involving minor litigants, it inevitably becomes susceptible to various legal and social challenges.



Footnotes

...152
Marcia M. Boumil, Ethical Issues in Guardian Ad Litem Practice, 86 Mass. L. Rev. 8, 8 (2001).
...153
Id. at 9.
...154
Judge Rotenberg Edu. Ctr., Inc. v. Commissioner of the Dept. of Mental Retardation, 424 Mass. 476, 477 n.3 (internal citation omitted).
...155
D.O. v. B.O., 49 Mass. App. Ct. 1119, 1120 (2000).
...156
Boumil, supra n. 152, at 10.
...157
Boumil, supra n. 152, at 10.
...158
Id.
...159
Id. at 589.
...160
Boumil, supra n. 152, at 10.
...161
Id.
...162
Id.
...163
Giacchino v. Johnson, 49 Mass. App. Ct. 1114, 1114 at n. 4 (2000).
...164
Kendall v. Kendall, 426 Mass. 238, 253 at n. 17 (1997).
...165
See Mass. Gen. Laws ch. 215 (2000); Uniform Practices Xa, Xb.
...166
Boumil, supra n. 152, at 11.
...167
Id.
...168
Id.

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