My most rewarding assignment as a lawyer is when the Court appoints me to serve as a Guardian Ad Litem or attorney for the parties' children. Recently, my role as GAL came into direct conflict with the privilege against disclosing evidence of settlement negotiations. One of the parents filed an application for ex parte relief with regard to holiday parenting time that could not be resolved by prior agreement of the parties. I appeared at the place and time designated in the moving party's P.B. §4-5 papers seeking injunctive relief. The Court insisted on taking evidence on the ex parte application, and I was called to the stand by the moving party — the nonmoving party did not appear. The following exchange took place:
ATTORNEY: Was there a time when you stated that my client's position was in the children's best interests?
ME: Judge, I'm sorry, but she's asking me about conversations that took place during settlement discussions, and I'm not comfortable recounting those negotiations in open court, and claim the privilege.
THE COURT: Are you the Guardian or the Attorney?
ME: GAL, your Honor.
THE COURT: While I appreciate your work as a GAL, you are a witness Mr. Palmer and since nobody is here to object to the question, please answer.
ME: A plan that was presented to me as part of a settlement discussion, which I indicated I believed was consistent with the children's best interests.
At the conclusion of these proceedings, the Court granted my request to appoint an attorney to represent me in further proceedings —the parties eventually agreed that an attorney should be appointed for the children, since the privilege against disclosure belonged to them.
The Court may appoint a GAL for a minor who has an interest in the proceeding, in the sound discretion of the Court, and which may be made with or without notice. C.G.S. §45a-132 (a); (b) & (d). Unlike the attorney for the minor child, who is the child's advocate in the proceeding, the GAL represents the child's best interests. Gil v. Gil, 94 Conn. App. 306 (2006). The GAL appears and testifies as a witness, subject to cross-examination, so that the GAL can make recommendations to the court regarding the best interests of the minor children. Brown v. Brown, 132 Conn. App. 30 (2011). Guardians enjoy a quasi-judicial status that entitles them to absolute immunity in claims asserted by one or the other of the parents. Carrubba v. Moskowitz, 274 Conn. 533 (2005). A fair reading of the law suggests that the role of GAL is limited to that of an advisor to the Court, and in that role, GALs are often asked to offer their recommendations based on facts developed by them in the exercise of their due diligence. As such, facts upon which that testimony is based is fair game for cross-examination, including hearsay which may have been relied upon by the GAL. The concern for the GAL (or an offending party) is that the GAL sees something or hears something in a settlement discussion which impacts his or her recommendation.
Evidence of settlement negotiations is not admissible in civil and family proceedings, in furtherance of the strong public policy favoring settlement of private disputes — the purpose behind this privilege is that persons in dispute should engage in a candid honest exchange, which would be hindered if that exchange could become fodder for Court hearings. However, as our Connecticut Supreme Court wrote in Tomasso Bros., Inc. v. October Twenty-Four, Inc., 221 Conn. 194, (1992), "[a]n offsetting principle holds that an admission of fact is competent evidence, even though the admission was made in settlement negotiations, 'where the statement was intended to state a fact. . . .The test is whether the party making the admission intended to concede a fact hypothetically for the purpose of effecting a compromise, or to declare a fact really to exist.'. . .If it is unclear whether the statement of a declarant was intended to promote the negotiation of a settlement or to constitute a factual admission of liability, the statement is inadmissible." This begs the question, are the observations of the GAL during settlement discussions "a fact" subject to cross-examination if that "fact" impacts the recommendation?
The more likely fact pattern may develop in a protracted settlement discussion, such as a day-long mediation or special masters' conference, where a party acts out or takes an unreasonable position during the settlement proceedings. Consider the following:
Throughout the pendency of the custody proceedings, the mother and her attorney voiced serious concerns about the father's actions in front of the children. He is alleged to get red-faced, rigid with anger, and yell obscenities and threats at the mother and the children. However, in court and all other face-to-face contact with the GAL, he was reserved, well-mannered, and never showed any anger toward his wife or their children. The GAL doubted the mother's version of these events. The case was referred for an all-day mediation. Late in the afternoon during the mediation, the GAL suggested changes to the parenting plan with which the father disagreed. In the presence of the mediator, the GAL, and the mother and her attorney, he became red-faced, rigid with anger, and began to raise his voice before his attorney was able to move him to another room. The GAL and others overheard an obscenity laden tirade from that room, before they adjourned the mediation. At trial, the mother's attorney sought to elicit testimony from the GAL about whether and how this conduct impacted the recommendation.
In this second fact pattern, the conflict is compounded because one of the party's actions directly affected the GAL's recommendation negatively. Such a factor would appear to be admissible to test the recommendation under Eisenbach v. Downey, 45 Conn. App. 165, , cert. denied, 241 Conn. 926 (1997), where the Appellate Court held that information obtained to formulate an opinion is admissible to support or attack that opinion, notwithstanding other bases for its exclusion. In Eisenbach v. Downey, an expert was allowed to testify about hearsay which he relied upon in formulating his opinions. Here, where the father's constitutionally protected interest in parenting was affected by a privileged proceeding, and the GAL's act of participating in the settlement conference may exceed the statutory grant to appoint the GAL, is the credibility of the recommendation at risk of attack?
As the GAL, I now require a waiver from both parties and their attorneys prior to engaging in any settlement discussions. The most salient provision of the waiver states as follows:
The parties and their attorneys by each of their hands, agree that the mediation proceedings participated in by the GAL with regard to this case shall be and continue to be absolutely privileged, including the positions advanced by the GAL during the mediation proceedings. Neither party shall be entitled to engage in any direct or cross examination of the GAL with regard to any position advanced by him during the mediation process, and all communications and statements made by the GAL during the mediation shall remain confidential.
The second solution is for the GAL to simply not participate directly in settlement discussions, either ask to be excused, or have the attorney for the minor children participate directly. In all the mediations I have participated in as GAL, on only one occasion did a party refuse to sign the waiver, which was his right, and which I did not question — the children's attorney handled the mediation. It was a lonely day for me during the mediation, since his refusal to sign the waiver essentially kept me separated from the others throughout the day. That afternoon, I was presented with a draft parenting plan, already signed by the parties, which was in the best interests of the children. And the case settled.•