Kathy J. Banks v. Patrick R. Leary, 209 A.3d 109

Background

Leary and Banks divorced by agreed judgment in July 2017 granting shared parental rights; they initially continued to live together with the child.
After concerning events involving the child in late 2017 and Banks’ subsequent move with the child, post-judgment motions sought modification of custody, residence, contact, and support.
A guardian ad litem (GAL) was appointed by court order requiring the GAL to appear at all court events; the GAL later filed a written report recommending primary residence with Banks and limited parental decision-making for Leary.
At the May 30, 2018 contested hearing the GAL was present early but the court—incorrectly stating the GAL need not stay—excused her over Leary’s objection; substantial testimony and documentary evidence followed.
The GAL report was admitted into evidence without an express contemporaneous objection from Leary (he had earlier objected only to excusal of the GAL); Leary testified and otherwise questioned witnesses about the report during the hearing.
The court modified parental rights to a "parallel, but not fully shared" structure, awarding primary residence to Banks and restricting Leary’s contact pending evaluation/treatment; Leary appealed, arguing admission of the GAL report without the GAL being available for cross-examination violated his rights.

Issues

Issue	Plaintiff's Argument (Leary)	Defendant's Argument (Banks)	Held
Whether admitting GAL report when GAL had been excused (so Leary could not cross-examine) was error	Admission was erroneous and violated right to cross-examine under 19-A M.R.S. §1507(5) and due process	Report was admissible by statute/rule, Leary had opportunity to challenge report through other witnesses and did not object when report was admitted	Any error in admitting the report without the GAL present was harmless; judgment affirmed
Whether Leary preserved the evidentiary objection	Leary argued court’s earlier objection to the GAL’s excusal preserved the issue	Banks argued Leary did not object to admission of the report when it occurred, so the issue was unpreserved	Court noted lack of contemporaneous objection may waive claim, but reached harmless-error analysis anyway
Whether statutory rule requires GAL be subject to cross-examination when report admitted	Leary: §1507(5)/M.R.G.A.L. 4(b)(7) entitle parties to cross-examine the GAL author	Banks: statute allows admission and contemplates cross-examination, but here other testimony covered same material	Court agreed statute contemplates cross-examination; but absence of GAL’s cross-exam was harmless here
Whether admission of report prejudiced Leary’s substantial rights	Leary: lack of GAL cross-exam foreclosed meaningful challenge and affected custody outcome	Banks: Leary extensively questioned witnesses, testified, and introduced overlapping evidence; court relied only limitedly on GAL report	Court held highly probable the admission did not affect judgment; error was harmless

Key Cases Cited

McBride v. Worth, 184 A.3d 14 (Me. 2018) (standard for viewing facts in support of trial court’s judgment)
Wechsler v. Simpson, 131 A.3d 909 (Me. 2016) (cross-examination of GAL is the most effective challenge to GAL’s work)
In re Jonas, 164 A.3d 120 (Me. 2017) (standard of review for evidentiary rulings)
In re Caleb M., 159 A.3d 345 (Me. 2017) (statutory admissibility of GAL reports and due process requires right to respond and cross-examine)
Gehrke v. Gehrke, 115 A.3d 1252 (Me. 2015) (parental liberty interest implicated in custody decisions)
In re M.B., 65 A.3d 1260 (Me. 2013) (harmless-error standard when improperly admitted evidence affects constitutional interests)
Shaw v. Packard, 886 A.2d 1287 (Me. 2005) (errors not affecting substantial rights are harmless)
In re Elijah R., 620 A.2d 282 (Me. 1993) (error is harmless when improperly admitted evidence is cumulative to competent evidence)