As a child custody lawyer, it is often that a Guardian Ad Litem is appointed in a case wherein the court deems it necessary to protect the best interests of the child. In Reitz v. Reitz, the Honorable Judge Jones of the Superior Court of New Jersey, Family Part of Ocean County reviewed the appropriate protocol for communication relating to the submission of documents to third parties, and their attorneys, when a Family Part court appoints a guardian ad litem. Judge Jones held that: in a contested Family Part matter that involves a guardian ad litem or court appointed expert, the Family Part court has the authority to establish reasonable protocols and parameters, in advance, which relate to communications and submissions of documents by the parties or the counsel to the guardian ad litem or expert; and these same judicially created protocols for communication with or supplying documentation to, a guardian ad litem or court appointed expert have to be reasonable, and accordingly should not be unnecessarily prohibitive or restrictive that they cause unreasonable imposition on the ability of the guardian ad litem to perform his or her function in an efficient and timely manner.
Tiffany and Robert Reitz got married in 2008, and divorced eight years later in 2016. During their marriage, they had two children together. The parents entered into a matrimonial settlement agreement, in which they agreed to share joint legal custody of their children under a shared parenting plan, with Tiffany designated as the parent of primary residence for the purpose of child support.
The parents returned to court because of child-related disputes. According to Rule 5:8B, the Family Part appointed a guardian ad litem to analyze each parent’s respective positions, and to make recommendations based on the children’s best interest. At a status conference, the court was informed that one of the parents was concerned if information or communications would be provided by the other party to the guardian ad litem without the same parent’s knowledge of the contents of that communication or information. Basically, the parent did not want the other parent to provide ex parte e-mails or documents that could potentially sway the guardian ad litem one way or the other, without also receiving a copy of the same document or e-mail, and a reasonable opportunity to review and reply to it.
Judge Jones explained that logically, litigants may wish to have the chance to see and review all written communications and documentation that is being provided by the opposing party to the guardian ad litem or appointed expert, before the analysis is finished, to ensure that there is sufficient time to fully respond before the guardian ad litem or court appointed expert concludes his or her recommendations and report. In an effort to prevent potential issues and disputes that could arise in the future along these lines, Judge Jones found that it would be appropriate and helpful to establish reasonable parameters and protocols in advance for all to follow in relation to communications with the guardian ad litem.
It is not unusual for a Family Part court to appoint neutral professionals to make recommendations, including guardian ad litems. Under Rule 5:3-3(d), a court has the authority to choose a qualified individual, either independently, or by the mutual consent of the parties. While such individuals do not generally have the decision making power, they can provide their expertise and recommendations to the litigants or the court.
Under Rule 5:8B(a), a guardian ad litem’s responsibilities include, but are not limited to, interviewing the litigants and the children, gathering relevant documentary evidence, and talking with the counsel of the the litigants. Unfortunately, the Rules do not enumerate any specific parameters or protocols for exactly how a guardian ad litem may carry out these responsibilities, and acquire and review documents or confer with counsel.
As a matter of practicality, Judge Jones found that in the present case, it was logical to establish specific precautionary parameters in advance that were not unreasonably cumbersome or prohibitive on the guardian ad litem’s ability to perform his or her job, and also remedied some of the rightful concerns a party to the case may feel in relation to an investigative process conducted by a guardian ad litem, or any other court expert for that matter. Both guardian ad litems and court experts have the need, from time to time, to communicate with each party to the case separately, during the course of his or her investigation. As such, a guardian ad litem, or any other court expert, must not be unreasonably restrained in his or her ability to carry out such communication. Such a prohibitive restriction would be impractical logistically, would slow down the guardian or expert’s ability to perform his or her duties, and could potentially have a chilling effect on each litigant’s comfort in speaking with the guardian or expert. With that said, the guardian ad litem or court expert, has an implicit duty to maintain accurate records of any and all verbal communications with either party. This includes documenting the date, time and substance or nature of the verbal communication.
Written communications between a litigant and a guardian ad litem or expert are treated slightly differently. In this modern age, written communications are quite easy to copy and send to the other party, especially when in the form of e-mail, with or without scanned documents. As such any communication between an attorney and a guardian ad litem, on behalf of a client, that written communication can easily be simultaneously copied to the opposing counsel. Similarly, any documentation that may be submitted to a guardian ad litem can be easily copied and provided, simultaneously, to the other party, in a manner similar to notice requirements when a party files paperwork with the court directly.
While the main purpose of a guardian ad litem is to provide the Family Part with objective recommendations to be utilized at a trial or hearing, another equally important pre-trial value of a guardian ad litem’s recommendations is that parties often use the same recommendations as a building block to participate in settlement negotiations. This is especially true when both parties consider the investigative process to have been conducted in a balanced, fair, transparent, and objective manner. It makes sense that litigants in family court would appreciate knowing what documentation the other side is supplying a neutral professional, so he or she can review it, and have the opportunity to refute it, if it is inaccurate.
With that said, it is important to note that a guardian ad litem needs to be given a reasonable degree of professional discretion as to the logistics of performing an investigation, and so the Family Part cannot just micromanage an expert or guardian in a way that unnecessarily prohibits or gets in the way with the professional’s ability to perform his or her job. However, in the face of an incredibly volatile and litigious case, there may be a benefit to the parties in the case, the professional or guardian, the attorneys on record, and to the Family Part court itself, in crafting reasonable parameters, in advance, to promote instead of hinder, an effective and fair gathering of information.
In the specific case of Reitz v. Reitz, the Honorable Judge Jones ordered that any written communication with the guardian ad litem should be simultaneously forwarded to the other party, and if any party submits documentation for consideration, that documentation should be supplied only at the professionals explicit prior request or consent, and a copy of the same must be supplied to the other party waiting five days of the submission. Finally, unless agreed otherwise, there would be no oral communication by either counsel with the guardian ad litem in regards to the case, unless both attorneys are present in the communication, by phone or by person. Judge Jones ended his analysis by stating that every situation is different, and another case may call for different parameters depending on the specific facts and equities of the case.
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