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Challenging The Guardian Ad Litem's Report in the Rhode Island Island Family Court!

In many cases involving children, the Rhode Island Family Court will appoint a lawyer or attorney familiar with Rhode Island family law and it's standards as a Guardian Ad Litem for the child(ren).

The role of the Guardian Ad Litem is typically to investigate the circumstances of the parents and protect the best interests of the minor children.  The Guardian Ad Litem will use his or her factual investigation and apply his or her findings to the standards set forth by the Rhode Island Supreme Court in the case of Pettinato v. Pettinato, 582 A.2d 909 (RI 1990).

The Pettinato case is the primary case in which our Rhode Island Supreme Court set forth the factors to be considered when determining "the best interests of the child." 

Once the Guardian Ad Litem applies the Pettinato factors, he or she will make one or more recommendations regarding placement, visitation, and sometimes treatment for the minor child(ren) or even the parents.  The nature of the recommendation(s) are usually  based upon the reasons why the court appointed the Guardian Ad Litem.  

For instance, if the Family Court Judge wanted a recommendation regarding placement, then the Guardian will usually focus his or her investigation on investigating issues relating to placement of a child and the end result is likely to be a recommendation by the Guardian Ad Litem as to placement.

The factors for determining the "best interests of the child" as outlined in the Pettinato case include: 

1)  The wishes of the child's parent or parents regarding the child's custody.

2)  The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

3)  The interaction and interrelationship of the child with the child's parent or parents, the child's siblings, and any other person who may significantly affect the child's best interest.

4)  The child's adjustment to the child's home, school and community.

5)  The mental and physical health of all individuals involved.

6)  The stability of the child's home environment.

7)  The moral fitness of the child's parents.

8)  The willingness and ability of each parent to facilitate a close and continuous parent-child relationship between the child and the other parent.

The formal report of virtually every Guardian Ad Litem will reference the Pettinato factors.  

So what does a Rhode Island family law attorney do if the Guardian Ad Litem's report and recommendations are adverse to their client?  Sadly, this is where things become problematic.  Too many Rhode Island family law attorneys will advise their client that the Guardian's Report "went against them", "that the judge will give the Guardian's Report tremendous weight/importance"  and therefore it is not practical to challenge the recommendations at a full hearing on the merits.  

So what do you do if a Guardian Ad Litem's report is not in your favor any you believe that the recommendations to the court are clearly wrong.

First, family law clients and attorneys need to discuss the Guardian's report and recommendations and what they mean from both a legal and a practical standpoint.  Why?  Because you do not want to spend time, effort and money challenging something if you don't understand what it means to you as a client and particularly as a parent.

Second, clients/parents must understand that a Guardian's Report is based solely upon that solidity of the Guardian Ad Litem's investigation.  

Third, clients/parents need to understand that not every Guardian Ad Litem will perform the same type or depth of investigation.  Therefore, some recommendations will be based upon a solid investigation and others may be based upon a weak investigation.

Fourth, clients/parents need to understand that some Rhode Island family law attorneys are not willing to question or challenge the recommendation of another attorney who may be a well-known attorney by reputation or a friendly colleague. 

Whether you are a family law client or a litigant representing yourself before the Rhode Island Family Courts, you must be aware that a Guardian Ad Litem's recommendation and report is just that... a recommendation.  The court is NOT bound by the Guardian Ad Litem's recommendation and it is the judge, based upon all the factors and all of the evidence presented who makes the final decision.

Why is it important to know these things?

Imagine that you are a judge.  You are presented a report and recommendation by a well-known Guardian Ad Litem that you assigned to the case.  The matter goes through a full trial.  During the Judge you hear all the evidence from a client/parent who was unwilling to accept the report and settle the case.  As the Rhode Island Family Court judge you want to make sure that any information and recommendation you are given is accurate and is based upon sound investigation so that you make the best possible decision.

Now as the judge you hear testimony and take evidence from people that you believe the Guardian Ad Litem should have spoken to before making his or her recommendation.  There is no explanation why the Guardian didn't consider these various people or records.  

In the end, as the Judge you believe that the Guardian simply didn't look deep enough or drew conclusions that were not reasonable because important information was not considered.

As the judge, how much significance would you give to the Guardian Ad Litem's recommendations if you believe the Guardian's investigation was not thorough enough?  Would you give the recommendations very little significance?  Perhaps even none?

This is not a rare scenario.  A Rhode Island Family Court judge wants to make the best decision possible for minor children.  The judge may well find that the Guardian Ad Litem's report should be given very little consideration when making his or her decision because the Guardian neglected to speak with key people, look at important records that were available, or to ask important questions which may substantially impact the Guardian's recommendation and the court's decision.

In my history working with Rhode Island Divorce Attorneys, I have witnessed too many attorneys who advise their client to settle a case when a Guardian Ad Litem's report and recommendations are unfavorable to their client.  This can be a grave mistake.

Individuals who represent themselves and attorneys with their client's best interests at heart need to scrutinize not simply the Guardian Ad Litem's recommendations, but more particularly the factual investigation.

In the end, a good Rhode Island Family Lawyer does not simply defer to a Guardian Ad Litem's recommendations simply because he or she holds the title of Guardian Ad Litem.

Consider this analogy. Carports are rarer these days but the idea is simple.  A carport is a roof that protects a car or truck and its owner/driver from the elements of sun, snow, wind, rain, etc...   This roof is held up at each corner by a post that must be strong enough to bear the weight of the roof and withstand the various elements that are thrown at them.

The recommendation of the Guardian Ad Litem is the roof of the carport.  A  judge would like to rely upon it for a reasonable level of stability just like the driver of a car sitting in his car under the carport wants to be able to trust that the carport's roof will keep his or her cars safe.

Yet what happens if you show the driver (i.e. the Judge) of the cars (i.e. the Children) that the roof (i.e. the Guardian's Recommendation) is held up by wooden posts that are filled with termites (i.e. the Guardian's Research) and the cars (i.e. the Children) are at risk if the driver (i.e. the Judge) relies upon the roof (i.e. the Guardian's Recommendation)?

Is a judge likely to rely upon the builder (i.e. the Guardian Ad Litem) in that instance?  If you are convincing enough, the answer is . . . no. 

In short, a Guardian Ad Litem's Report is not the end.  The judge has the final word based upon all the evidence.

Carefully scrutinize the recommendations and particularly the investigative report upon which they are based.  If you are able to invalidate or weaken the investigation, then you remove the support for the recommendations. 

If you show a weak investigation then the Guardian's report and recommendations may not even be given the weight of the paper it is written on.

My Best to All in Your Journey through the Rhode Island Family Courts,
Attorney Christopher A. Pearsall "The Rhode Island Divorce Coach"

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Whether you need affordable representation or coaching through an uncontested Rhode Island Divorce (or a contested proceeding), feel free to call me.  
Proudly serving Providence, Kent, Washington and Newport Counties in family law proceedings for more than a dozen years.
Call me Now at (401) 632-6976.

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