In Ohio, a guardian ad litem (GAL) (also known as a CASA- court appointed special advocate), is appointed by the court to assist a domestic or juvenile court in determining what is in a minor child’s best interest. A GAL does this by reviewing court pleadings, requesting and reviewing records of the necessary parties and children involved, speaking with witnesses, and conducting studies and interviews of the children at home and at school. Because the GAL does not represent either party in the case, it is believed that through their independent investigation they will be able to recommend to the court what outcome is the best for the children.
A critical part of the GAL’s investigation is reviewing the records of the parties involved. Therefore, in Ohio, when the court appoints a GAL to a specific case, the order issued makes it clear that the GAL has the power to review these otherwise confidential documents, and make copies if necessary. The court order usually states that it complies with the Health Insurance Portability and Accountability Act (HIPPA) regulations and states:
“Upon presentation of a copy of this court order, issued in compliance with 45 C.F.R. 164.512, to any agency, hospital, organization, school, person, or office including but not limited to the Clerk of Court, human services agencies, public children services agencies, private child placing agencies, pediatricians, psychiatrists, other physicians, psychologists, counselors, or law enforcement agencies, the Guardian Ad Litem shall be permitted to inspect and copy any records, including activity logs, cancellation notes and/or observation notes from any supervised parenting agency, and treatment for physical and mental illness, and/or drug abuse, and/or AIDS (Acquired Immunodeficiency Syndrome), and/or the results of an HIV test or the fact that an HIV test was performed, relating to the child(ren) without the consent of the child(ren) or the child’s parent(s) or legal guardian(s); and to discuss with the person providing the treatment or tests in issue all matters pertinent to treatment and findings related to the child(ren).”
The language above taken from Franklin County’s standard court order appointing a GAL, demonstrates the power that is bestowed upon them. The order also instructs that any information the GAL collects in connection with such power is to remain confidential and shall not be disclosed unless it’s to the court or permitted by law. The order is then signed by the judge and copies are sent to the parties and the GAL.
(NOTE: Montgomery, Greene and Warren Counties do not even have any of the above language from Franklin County)
Release Of Information: GAL Has Power To Review Confidential Documents From Parties Involved
On its face, the court’s order indicates that only the GAL can view the parties’ private records. Then, theoretically, the GAL reports it as necessary to the court and only the court, to maintain the confidentiality of the information. However, the problem with this is, once the GAL has looked at and/or copied the documents, they may be referenced or attached to the final report, which is given to the opposing party and is made part of the record in some manner. In Montgomery County, those reports are kept in a confidential file called the “Q” file. As a result, more people than just the GAL and the judge end up being privy to a party’s personal information.
Some argue that this is the nature of the game – that when you are a party to a case involving the placement/custody of a child, all your skeletons should and will be exposed. However, others believe that perhaps the GAL should obtain a release of information from the parties themselves, indicating that they understand that once he/she obtains their personal records, their confidential nature may be altered.
While it appears that Ohio has not seen much by way of case law on the issue, other states have apparently contemplated this exact problem.
Release Of Information Form Authorizes Release Of Records To The Named GAL
For example, in Minnesota, the Second Judicial District utilizes a form in which the parties sign a release of information to a specific health care provider, authorizing the release of their records to the named GAL. Click here to download form. The form specifically states that the party understands that:
- The information released in response to this authorization may be re-disclosed to other parties and the information re-disclosed will no longer be protected by applicable laws.
- The information released may become part of the court record.
In addition, the form also states that while the party has the right to refuse to sign the release, they acknowledge that the court may impose sanctions if they have been ordered to sign and refuse.
In Minnesota’s form, the parties are specifically told that the information the GAL receives is no longer confidential or protected. While Ohio does not appear to require such an acknowledgement from its parties, it begs the question of whether it should implement something similar in nature?
Until then, in cases where a GAL is appointed, parties should at least be aware that their private information may not be so private after all!
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Robert L. Mues
Robert Mues is the managing partner of Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues, and has received the highest rating from the Martindale-Hubbell Peer Review for Ethical Standards and Legal Ability. Mr. Mues is also a founding member of the "International Academy of Attorneys for Divorce over 50" blog.