Whenever a child is involved in a family law court case, it is common for everybody to be represented by an attorney except for the child. The Guardian Ad Litem (GAL) is a person appointed by the court to represent the child in court and to make specific recommendations to the court regarding the best interests of the child. The role of GAL is not exactly the same as being an attorney for the child. The GAL has to consider the child's wishes, but also is required to make an independent judgment of what is in the best interest of the child, even if that is not what the child wants.

Generally, the GAL has a duty to familiarize himself or herself with the case prior to the trial or hearing; to find out the child's wishes by meeting with the child (or by meeting with others involved in the case if the child is too young to express wishes); to gather information and arrange the presence of necessary witnesses for the hearing; to represent the child in court at the hearing, and to advise the Court as to the child's wishes and the GAL's recommendations (if asked for).

As attorneys, we're frequently asked what the GAL tends to look for. Here's a list of what we've been told is the beginning of their checklist:

Children who are acting out or withdraw, refusing to go to school, caretaking and filling adult roles, constantly seeking attention (often labeled as ADHD), bedwetting, nightmares, difficult to set limits, hitting adults, regressing...those who are full of guilt, shame, fear, anger, confusion, grief, insecurity, etc.

On a social note, GALs often look for those children who have patterns of isolation, those who are overly social, have difficult in trusting others, poor conflict resolution skills, may be passive or bullying with playmates, or those with poor images or anything that is stereotypically female.

Earlier this week, I was preparing my client for what is bound to be a rough custody dispute. The first exercise I suggested that she consider was to create a chart to rate herself and her spouse in the areas listed below. How to score: Give yourself one point for each of the factors where you "over-achieve" and give your spouse a point if he or she is the over-achiever. In factor number three award two points to the over-achiever. Factor number ten earns two points if the average age of the children is over ten and three points if they are over fifteen. Here are the factors:

1. Love, affection and emotional nurturing

2. Capacity of the parties to give children love, affection, and guidance.

3. Length of time children have lived in a stable environment.

4. Each parent's ability to provide food, clothing, and medical care.

5. Permanence as a family unit of the existing (or proposed) custodial home.

6. Moral fitness and overall values

7. Physical, emotional and mental health

8. Home, school, community setting

9. Parent's willingness and/or ability to foster a working relationship with the other parent.

10. Preference of the minor children.
    

There are six things you must do before you act on any thoughts you have about filing for custody. It's important to be certain that you have done the things you need to do to feel good about your decisions. Here are the top six things:

1. Talk to an attorney before you do anything. Even if you don't end-up hiring an attorney to handle your separation or divorce, you would be well advised to get as much information you can before doing the same relating to the custody of your children.

2. Understand the Massachusetts standard as it relates to children (and custody-related issues). Here, we follow the "best interest of the children" approach. It is always best to work out an agreement with the other parent; then, child custody is simple. But if you cannot work out an agreement, the government takes over the role of deciding what is best for the children.

3. Create a proposed "Parenting Plan." A vague, flexible arrangement will only create more trips to court later on. Insert all the issues to be addressed. Include joint and individual responsibilities, regular parenting schedules and vacation times each year.

4. Beware of the Parental Alienation Syndrome. This theory that describes brainwashing by one parent to make the children hate the other parent is toxic. Evidence of this is often enough to convince the judge that one parent is unfit to be a sole custodian - based on this alone!

5. If you end up in court, be briefed and follow the Rules of Procedure and discovery. Now is not the time to show your inability to follow any system that includes structure and predictability.

6. If a GAL (Guardian ad litem) is involved, present your case in the best light possible. Find pictures of you with the children (showing how they're happy) and get letters of reference of others who have seen you interact with the children.