Crucial Steps Counsel Can Take To Challenge Investigation Findings From An Incompetent GAL (Guardian Ad Litem)
A month or so ago I took a trip out to Lake Tahoe for one of my college buddy’s bachelor party. Let me tell you something about Lake Tahoe during the ski offseason, you gamble a lot. And that is what we all did during the weekend. We just gambled and placed bets on various sporting events at the three casinos Lake Tahoe has to offer. I did not go crazy with the bets because my wife would murder me, but I had some fun taking a risk on the uncertainty of will I win or not. Except for when I placed a bet against the Reds during their series with the Pirates. I knew for a fact I was going to make money on that bet.
In any event, I often get that feeling of uncertainty when a Guardian Ad Litem (GAL) is appointed to any of my child custody cases. I know for a fact that the GAL report can make or break my client’s case surrounding custody. So at times, I do feel that it is a gamble on how the GAL will land on custody. However, unlike casino gambling, an individual is able to attack the GAL’s report and investigation if it is not in their favor.
Back in March 2009, the Ohio Supreme Court instituted Ohio Rule of Superintendence (Sup.R.) 48 to codify the role and responsibilities of a GAL. In August 2012, Nolan v. Nolan, 2012-Ohio-3736, became the leading case for the interpretation of Sup.R. 48 and applying said interpretation to a GAL’s lack of investigation. The court in Nolan held that if a GAL falls far short of the minimum standards of Sup.R. 48, there could be an abuse of discretion by the trial court to consider the GAL report and testimony. Awesome right?! We now have some case law and standards to attack incompetent GALs! While this is true, you must setup your attack on the GAL’s report properly or you will lose on appeal!
In In Re: Ma. P., Mc. P., 2015-Ohio-2088, Father asserted on appeal that because the GAL failed to comply with the requirements of Sup.R. 48, the trial court should have not considered the GAL’s report or testimony. Father relied on Nolan to further assert his argument.
The appellate court distinguished the case at hand from Nolan by stating, “the Nolan court emphasized that the guardian ad litem failed to conduct a bare bones investigation that would support his recommendation that the mother should be the residential parent. For example, the guardian ad litem did not: visit the home of either parent, talk to the child without a parent present, interview the child’s school or medical providers about his behavioral or mental health issues, or interview or investigate the mother’s live-in boyfriend.”
The appellate court felt the investigation conducted by the GAL complied with Sup.R. 48 in most respects. So the GAL got some of it right and some it wrong according to the appellate court. If this is true, where did Father go wrong?
Father’s mistake was that he failed to object to the GAL report being admitted into evidence and he failed to object to the testimony of the GAL. Because of failing to object to the report and testimony of the GAL, the appellate court found that Father’s cross-examination of the GAL went to the weight of the evidence and not its admissibility of the evidence. For you non-legal types, weight of the evidence is the measure of credible proof on one side of a dispute as compared with the credible proof on the other side. This is based on the believability or persuasiveness of evidence. Basically, Father was arguing because of the GAL did not follow Sup.R. 48, the testimony and report is less credible. What Father wanted to argue, and failed to argue, was “I object to the GAL report and any testimony given by the GAL because the GAL failed to comply with Sup.R. 48. Thus any testimony and report should not be admitted as evidence.”
This situation is not too uncommon either. In Corey v. Corey, 2014-Ohio-3258, Father moved to admit the GAL’s written report into evidence, and said report was admitted into evidence without any objection from Mother. On appeal, Mother argued that the trial court should not have relied on the GAL’s written report because the GAL did not comply with his duties under Sup.R. 48.
Even though mother failed to object to the admission of the written report, the appellate court took up mother’s argument surrounding the GAL and Sup.R. 48. Mother argued that the GAL must, at a minimum, “observe the child with each parent, foster parent, guardian or physical custodian,” Sup.R. 48(D)(13)(a), and “interview school personnel and medical and mental health providers,” Sup.R. 48(D)(13)(g).
The GAL testified that he did not observe any of the children with either Mother or Father, did not interview school personnel, and did not interview medical or mental health providers. When asked why he did not complete what was required of him as a GAL, the GAL went on to testify that he had the school records, reported that he had concerns about one child, and that neither Mom nor Dad expressed any concerns about medical or mental health.
The court found that even under these facts “we cannot say that the trial court abused its discretion by admitting and considering the GAL’s report.” The court re-emphasized, under Nolan, that Sup.R. 48 does not have the force of law. The court went on to state that even if a GAL fails to comply fully with Sup.R. 48, a trial court retains the discretion to consider the GAL’s testimony and report. Based on that reasoning, the court concludes with, “the trial court could reasonably have concluded that, considering the GAL’s entire investigation in this case, his report was still competent and credible evidence of the children’s best interest.” Say what?!? I would argue that Mother’s arguments were almost the same facts in Nolan!
I think that it is interesting to note based on In Re: Ma. P., Mc. P. and Corey, you almost have two standards to prove to ensure you have an appealable issue against a GAL report. First, you must ensure that your counsel properly objects to the report and testimony of the GAL from the start of your trial and throughout the trial. You must fight the admissibility of both the report and testimony based on Sup.R. 48 and Nolan. Second, you must ensure that your counsel demonstrates that the GAL’s investigation is “bare bones” as in Nolan. As the case in Corey shows, your counsel must aggressively attack the GAL’s report to show that the GAL conducted a “bare bones” investigation.
For more information on GALs and Rule of Superintendence 48, click to read A Dramatic New Guardian Ad Litem Rule in Ohio and Guardian Ad Litem: The Difference Between Winning and Losing.
Avoid Barebones Investigation From A Lazy GAL (Guardian Ad Litem). Seek Professional Advice Today!
With all of the potential issues one could face when dealing with an incompetent Guardian Ad Litem (GAL), it is best to seek professional advice from an attorney who can help you navigate this intricate area of law. If you are involved in such a situation in the Dayton area, contact one of our experienced family law attorneys today!
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Thomas G. Kopacz
Thomas Kopacz is an associate attorney with Dayton, Ohio, lawfirm, Holzfaster, Cecil, McKnight & Mues and the managing editor of the Ohio Criminal Defense Law Blog. He is also a member of the Association of Ohio Criminal Defense Lawyers.