1 Counsel for the Child in Custody Disputes: The Time is Now LINDA D. ELROD* Although only two states presently require appointment of a person, e.g., a guardian ad litem, to represent the interests of a child in a custody dispute, I nationally the trend inches toward requiring that independent counsel be appointed for a child whenever custody is contested. 2 If the law continues to focus on children's rights, and child advocacy groups continue to seek judicial reform for the benefit of children, within the next decade an attorney who represents a parent disputing custody may be working with (or against) an attorney for the minor child from the onset of the custody dispute. 3 For over twenty-five years, observers and participants in the judicial process have discussed the need for representation of children involved in custody disputes. 4 Only within the past few years, however, has a *Linda D. Elrod, Professor of Law, Washburn University and member of Council of the ABA Section of Family Law. She is also the past chair of the Family Law Section of the Kansas Bar. The author acknowledges the research assistance of Laura Graham, Washburn University School of law. \. N.H. REV. STAT. ANN. 458:17a (1983 & Supp. 1991); WIS. STAT. ANN (West 1981 & Supp. 1990) and (1)(a) (West 1987). 2. Pisch v. Pisch, 510 A.2d 455 (Conn. 1986) (preferable to appoint independent counsel whenever custody is seriously contested); Nagle v. Hooks, 460 A.2d 49 (Md. 1983) (appointment of attorney for child is necessary to prevent one of the parents from waiving the child's doctor-patient privilege); Custody of a Minor, 489 N.E.2d 1266 (Mass. App. Ct. 1986); de Montigny v. de Montigny, 233 N.W.2d 463, 467 (Wis. 1975). 3. Carl Johnson, The Role o/the Guardian Ad Litem in Custody and Visitation Disputes, 17 COLO. LAw. 1301, (1988); Howard Davidson, The Child's Right to be Heard and Represented in Judicial Proceedings, 18 PEPP. L. REV. 255 (1991). 4. Donald Bersoff, Representation for Children in Custody Decisions: All That Glitters is not Gault, 15 J. FAM. L. 27 ( ); Tari Eitzen, A Child's Right to Legal Representation, 19 FAM. L.Q. 53 (Spring 1985); James Genden, Separate Legal Representation/or Children: Protecting the Rights and Interests 0/ Minors in Judicial Proceedings, II HARv. C.R.-C.L.L. REV. 565 (1976); Martin Guggenheim, The Right to be Represented But Not Heard: Reflections on Legal Representation/or Children, 59 N.Y.U. L. REV. 76, 119 (1978); Robert W. Hansen, The Role and Rights 0/ Children in Divorce Actions, 6 J. FAM. L. I, 5 (1966); Monroe Inker & Charlotte Perretta, A Child's Right to Counsel in Custody Cases, 5 FAM. L.Q. 108, 115 (1971) ("The best interests of a child can best be determined on the basis of objective, 53
2 54 Family Law Quarterly, Volume XXVI, Number 1, Spring 1992 combination of factors prompted wider use of attorney representatives for children. Among those factors are the shift from thinking of a child as a chattel, to thinking of a child as a person who has a right to be heard;5 growing dissatisfaction with the failure of the adversary system to protect children embroiled in their parents' battles; the demise of the maternal custody presumption and fault-based divorce; and the increasing use of attorneys as guardians ad litem in abuse and neglect cases. 6 A well-publicized 1972 proposal for a "Bill of Rights for Children" included a child's right to be represented by counsel in legal proceedings;? yet few states rushed to provide any representation, even by a lay guardian ad litem, until the federal requirements for appointment of a guardian ad litem in an abuse and neglect case was instituted in In many states the response has been less than enthusiastic. 8 In November 1989 the United Nations unanimously adopted the Convention on the Rights of the Child, 9 calling for children to be heard directly as to their interests and to be provided effective legal assistance, but the United States has not ratified the Convention. Dissatisfaction with the handling of child custody battles between parents has produced calls for an attorney to represent the child's interests between warring parents as well as for alternative dispute resolution, use of court services officers, home studies, and divorce workshops. When independent evidence... made available to the court if the child is given independent counsel.") See also Kim Landsman & Martha Minow, Note, Lawyering for the Child: Prin ciples of Representation in Custody and Visitation Disputes Arising from Divorce, 87 YALE L.J. 1126, (1978); Kevin Bischoff, Comment, The Voice o/a Child: Independent Legal Representation o/children in Private Custody Disputes When Sexual Abuse is Alleged, 138 U. PA. L. REV. 1383, 1405 (1990); Comment, Protecting the Interests of Children in Custody Proceedings: A Perspective on Twenty Years of Theory Practice in the Appointment of Guardians ad Litem, 12 CREIGHTON L. REV. 234 (1978); John M. Speca & Robert L. Wehrman, Protecting the Rights of Children in Divorce Cases in Missouri, 38 U. Mo. KAN. CITY L. REV. 1(1969). 5. Wallace J. Mlyniec, The Child Advocate in Private Custody Disputes: A Role in Search of a Standard, 16(1) J. FAM. L. 1,2,5 ( ); Eitzen, supra note 4, at (nature of child's interest in the litigation mandates due process requirements). 6. See Federal Child Abuse Prevention and Treatment Act, 42 U.S.C.A. 5106a(b)(6) (Supp. 1988) (states must appoint a guardian ad litem to represent a child in abuse and neglect proceedings as a condition to receiving federal monies). 7. Henry Foster & Doris Freed, A Bill of Rights for Children, 6 FAM. L.Q. 343, (1972). 8. OFFICE of HUMAN DEVELOPMENT SERVICES, U.S. DEP'T. OF HEALTH AND HUMAN SERVICES, NATIONAL STUDY OF GUARDIAN AD LITEM REPRESENTATION 41 (1990) [hereinafter NATIONAL STUDY) (guardians ad litem are not appointed in all cases, are not required in all states, and generally those who are appointed are undertrained and undercompensated.) 9. Convention on the Rights of the Child, G.A. Res. 44/25, U.N. GADR Annex, U.N. Doc. Al (1989), reprinted in 28 INT'L LEGAL MATERIALS 1456, 1461 (1990). Article 12 states:. I. Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial... proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of natural law.
3 Counsel for the Child 55 divorcing parents cannot agree on the custody of their child, the judge must award custody in the "best interests of the child."10 This amorphous "best interests" standard 1 1 makes predicting the mental, physical, psychological, social, and emotional benefits to a child from placement with one parent rather than the other extremely difficult. When each parent's attorney seeks to prove the other parent is less competent, parental needs and wants often are confused with the child's "best interests. "12 Since social science data, though tentative and inconclusive, seems to indicate that parental hostility has harmful long-term effects on a child, i3 judges are beginning to recognize the need for an independent advocate-one free of the influence of either parent or any other person using the litigation to promote a cause. 14 National sentiment now appears to favor increased representation for children. In 1989, 1990, and 1991, conferees at three national interdisciplinary conferences on children in the judicial system reached a consensus that an attorney or attorney guardian ad litem should represent the interests of the minor child in custody disputesy In August 1991 the American Bar Association Family Law Section adopted a resolution encouraging the appointment of a guardian ad litem in all disputed custody cases if necessary to protect the child's best interests. 16 Current State of the Law Even though federal law mandates that a guardian ad litem be appointed for a child in abuse and neglect cases, not all states follow the directive. 17 It is not surprising, therefore, that guardians are rarely appointed in custody cases generally. Only two states mandate the appointment of an 10. Chapsky v. Wood, 26 Kan. 650, (1881). 11. Robert Mnookin, Child Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 LAW & CONTEMP. PROBS. 226, (1975). 12. See Ford v. Ford, 371 U_S. 187, 193 (1962); Landsman & Minow, supra note 4, at See JUDITH WALLERSTEIN & SANDRA BLAKESLEE, SECOND CHANCES: MEN, WOMEN & CHILDREN A DECADE AFTER DIVORCE (1989). 14. Short v. Short, 730 F. Supp. 1037, 1039 (D. Colo. 1990) (children may be pawns in the conflict between their parents and need independent guardians ad litem); Scott L. v. Bruce N., 509 N.Y.S.2d 971, 975 (N.Y. Fam. Ct. 1986); Custody of a Minor, 489 N.E.2d 1266, 1268 (Mass. App. 1986) (paternal grandparents who had close identification with the father were not "disinterested" parties and should not be appointed guardian ad litem). See also JUVENILE JUSTICE STANDARDS 1.1 (ABA) (participation of counsel on behalf of all parties subject to... family court proceedings is essential to the administration of justice). 15. AMERICAN BAR ASSOCIATION, CHILD CUSTODY DISPUTES: SEARCHING FOR SOLOMON 89, 329, (1989); Families in Court (Reno, Fall 1990); Best Interest of the Child (Ripon Conference, April 13-16, 1991). 16. A.B.A. Section of Family Law Section Council Minutes (Aug. 10, 1991). 17. NATIONAL STUDY, supra note 8, at 41.
4 56 Family Law Quarterly, Volume XXVI, Number 1, Spring 1992 attorney guardian ad litem for a child in contested custody cases. IS A few more require appointing a guardian ad litem or attorney if there are allegations of sexual abuse. 19 Many state statutes give the judge discretion to appoint an attorney20 or guardian ad litem 21 or both22 in custody disputes. For example, a Connecticut statute grants the trial judge authority to appoint counsel whenever the custody, care, education, visitation, or support of a minor child is in controversy.23 Even without a statute, a court has inherent power to appoint a guardian ad litem to represent the child's interests. 24 Although the authority exists, few judges appoint any representative. The reasons usually given include: the additional costs involved for either the litigants or the court system; lack of demonstrated competence by guardians ad litem in previously decided cases; belief that attorneys for the parents will adequately protect the child's interests. The judge's decision not to appoint an attorney is rarely overturned and then only for an abuse of discretion. Many 18. See supra note I. The Canadian province of Ontario has an official Law Guardian to represent children in custody and visitation disputes. Wilson McTavish, The Official Guard ian of Ontario, Canada-His Role and Function, A.B.A SECTION OF FAMILY LAW 1988 ANNUAL MEETING COMPENDIUM (1988). 19. FLA. STAT. ANN (West 1990); MINN.STAT (2) (1988); Mo. ANN. STAT (Vernon Supp. 1991). 20. ARIZ. REV. STAT. ANN (1991); CAL. CIv. CODE 4606 (West 1983 & Supp. 1991); COLO. REV. STAT (1987 & Supp. 1990); CONN. GEN. STAT. ANN. 46b- 54 (West 1986 & Supp. 1991); DEL. CODE ANN. tit. 13, 721(c) (1981 & Supp. 1990); D.C. CODE ANN (b) (1989); IOWA CODE ANN (1981 & West Supp. 1991); Ky. REV. STAT. ANN (1) (Bobbs-Merrill 1984) (friend of the court); MD. FAM. LAW CODE ANN (1) (1984 & Supp. 1991); MICH. COMPo LAWS ANN (1)(e) (West 1991); MONT. CODE ANN (1991); NEB. REV. STAT (1) (1988); ORE. REV. STAT (3) (1990); PA. R. CIv. P (1987 & Supp. 1991); R.I GEN. LAWS (c) (1988); S.D. CODIFIED LAWS ANN (Supp. 1991); TEX. FAM. CODE ANN (West 1986 & Supp. 1991); UTAH CODE ANN (1989); VT. STAT. ANN. tit (a)(b) (1989); VA. CODE ANN (Michie 1988 & Supp. 1991) (only if child not adequately represented); WASH. REV. CODE ANN , (1986 & Supp. 1991). 21. FLA. STAT. ANN (West Supp. 1991); HAW. REV. STAT (8) (1985 & Supp. 1990); IND. CODE ANN (c) (West Supp. 1991); MASS. ANN. LAWS ch. 215, 56A (Law. Co-op & Supp. 1991); MICH. COMPo LAWS ANN (1)(e) (West 1991); MINN. STAT. ANN (I) (West 1990); Mo. ANN. STAT (Vernon Supp. 1991) (mandatory if allegation of child abuse or neglect); N.J. STAT. ANN. 9:2-4 (West Supp. 1991); N.M. STAT. ANN (Michie 1989) (must be attorney); N.D. CENT. CODE (1991); OHIO R. CIv. P. 75(B)(2) (1989); R.I. GEN. LAWS (c) (1988); TEX. FAM. CODE ANN (West 1986 & Supp. 1990). 22. ALASKA STAT (Supp. 1991); ILL. ANN. STAT. ch. 40, para. 506 (Smith Hurd Supp. 1991). 23. CONN. GEN. STAT. 46b-54 (West 1986 & Supp. 1991). 24. See, e.g., Lacy v. Lacy, 553 P.2d 928, 930 (Alaska 1976); Villareal v. State Dep't of Transp., 774 P.2d 213, 220 (Ariz. 1989) (trial judge may on own motion appoint a guardian ad litem); Gardner v. Gardner, 545 So. 2d 339, 340 (Fla. Dist. Ct. App. 1989) (trial judge has option of appointing guardian in custody case if circumstances warrant); In re Marriage of Strauss, 539 N.E.2d 808, 811 (Ill. App. Ct. 1989) (inherent power to appoint guardian); Cyr v. Cyr, 432 A.2d 793 (Me. 1981); Levitt v. Levitt, 556 A.2d 1162, cert. denied, 560 A.2d 1118 (Md. 1989); Van Houten v. Van Houten, 549 N.Y.S.2d 452 (N.Y. App. Div. 1989).
5 Counsel for the Child 57 of the reversals seem to be cautions to the trial court that the appellate court was not satisfied with the substantive custody disposition. 25 Confusion over Roles The call for attorneys to "represent" minor children has resulted in more diversity and additional confusion. At the very least, the lawyer appointed to represent a child needs to know the functions that he or she is expected to perform. At present, however, there is no uniform national standard for the role and treatment of a guardian ad litem or attorney for a minor child. 26 The roles differ from state to state, from judicial district to judicial district, and sometimes even from court to court within the same district. 27 As to the differing roles a lawyer may play, one writer indicates that a lawyer can serve as a guardian ad litem representing the child's best interests, as a counselor serving a mediator function, as an advocate representing the child's position, or as an amicus curiae serving as independent fact-finder.28 Some jurisdictions appoint attorneys as guardians ad litem with traditional guardian duties while others have imposed different standards on an attorney guardian. One authority suggests that the lawyer should be neither a champion for the child nor an investigator. 29 Some judges merge and blur the roles by assuming that all court-appointed attorneys are acting as attorneys and guardians ad litem.30 The confusion over the lawyer's role in representing a child is 25. Compare G.S. v. T.S., 582 A.2d 467 (Conn. App. Ct. 1990) (reversing trial court that failed to appoint an attorney for the child when custody was contested and there were allegations of sexual abuse) with Parillo v. Parillo, 495 A.2d 683, 686 (R ) (no abuse of discretion where no objective evidence indicated danger to the children who were healthy and outgoing). See also Schenk v. Schenk, 564 N.E.2d 972, 979 (Ind. Ct. App. 1991) (no abuse of discretion in not appointing guardian ad litem in modification proceeding); Sucher v. Sucher, 416 N.W.2d 182 (Minn. Ct. App. 1987) (no abuse of discretion in not appointing guardian); Leonard v. Leonard, 783 S.W.2d 514, 516 (Mo. Ct. App. 1990) (abuse of discretion not to appoint guardian where sexual abuse alleged); Maxfield v. Maxfield, 439 N.W.2d 411 (Minn. Ct. App. 1989) (case remanded so an independent guardian ad litem could be appointed to ascertain the custodial preference of a ten-year-old child). 26. See James R. Redeker, The Right of an Abused Child to Independent Counsel and the Role of the Child Advocate in Child Abuse Cases, 23 VILL. L. REV. 521, 539 (1978) (guardian ad litem not the same as attorney for child). 27. David Chambers, The Ambiguous Role of the Lawyer Representing the Minor in Domestic Relations Litigation, 70 Ill. B.J. 510 (1982). See, e.g., Ky. REV. STAT. ANN (Michie/ Bobbs-Merrill 1984) and IOWA CODE ANN (West Supp. 1991) (both require that an attorney be appointed but assign investigative and reporting tasks usually performed by guardian ad litem. 28. John Lightfoot, 10 FAM. ADVOC. 4,5 (Jan. 1988). 29. Guggenheim, supra note 4, at Collins v. Tabet, 806 P.2d 40, 49 (N.M. 1991) ("[t]he guardian ad litem thus may fulfill the dual role of providing information to the court to enable it to pass on the reasonableness of a settlement, while at the same time promoting the ward's interests by zealous advocacy and thorough, competent representation"); Robert Horowitz & Howard Davidson, Tough Decisionsfor the Tender Years, 10 FAM. ADVOC. 9,10 (Jan. 1988).
6 58 Family Law Quarterly, Volume XXVI, Number 1, Spring 1992 compounded by the dilemma of how official intervenors in a case should interact. For example, during the 1980s the Court Appointed Special Advocate (CASA) program was developed to provide advocacy for children in abuse and neglect proceedings. 31 The CASA, a trained layperson, is expected to investigate, advocate, facilitate, negotiate, and monitor the proceedings generally for one child at a timey In some states CASA volunteers are the equivalent of guardians ad litem,33 while in fourteen states the guardian ad litem is a CASA volunteer who is represented by counsel. 34 A few states have recently expanded the CASA program to other custody disputes. 35 Duplication of efforts may result. Because the functions of the lay guardian ad litem and CASA are very similar, and because confusion surrounds the term "guardian ad litem," states using volunteer lay guardians ad litem may eventually convert them to CASAs. At the least, standards need to be developed for interaction between the CASA and the attorney for the child to avoid duplication of efforts. 36 An additional area of confusion involves the role of the parent's attorney. The relationship between the attorney for a parent and a person appointed to "represent" the child's interests depends on whether the representative is a lay volunteer, a guardian ad litem, a CASA, a paid private attorney, a staff attorney for a court or legal services program, or a lay volunteer with a paid attorney,37 One might legitimately ask whether the system is becoming overburdened when each parent is represented by counsel, the child is represented by counsel, and the CASA or guardian ad litem is represented by counsel in a contested divorce case between technically "fit" parents. To avoid label confusion, I will refer to the attorney for the minor child as a child's counsel rather than guardian ad litem. Ideally, there will be a lay CASA or guardian ad litem who performs investigative and monitor- 31. See, e.g., KAN. STAT. ANN a (Supp. I 990)["in addition to guardian ad litem... the court... may appoint a volunteer special advocate for the child... "J. 32. Rule 110, 1990 KAN. SUP. CT. R. ANNOT. 98 (1986). See a/so In re D.D.P., Jr., 819 P.2d 1212 (Kan. 1991). Cf Scott Dean, The Guardians, MINN. B.J. at 25 (Sept. 1991) (three part-time guardians ad litem in Hennepin County, Minn., each represent over forty children). 33. See, e.g., ME. REV. STAT. ANN. tit. 22, 4005(1) (Supp. 1988) ("the term guardian ad litem is inclusive of lay court appointed special advocates... "). 34. Bill Craven, Guardians Ad Litem Criticized, NAT'L. L.J., Oct. 7, 1991, at For example, the CASA agency in Shawnee County, Kan., recently deleted the reference to the juvenile court and enlarged its stated mission "to advocate for the best interest of children and youth involved in the court system." CASA OF SHAWNEE COUNTY NEWSLETTER, Spring 1991, at NATIONAL STUDY, supra note 8, at LARRY CON DELLI, NATIONAL EVALUATION OF THE IMPACT OF GUARDIANS AD LITEM IN CHILD ABUSE OR NEGLECT PROCEEDINGS, I, 2 (1988).
7 Counsel for the Child 59 ing functions as well as a counsel for the child (but not for the CASA or guardian).38 Traditional Guardian Ad Litem Traditionally courts have appointed a guardian ad litem as an officer of the court to protect a child's interests in civil litigation or when a child has been abused or neglected. The duty of the guardian ad litem as an adjunct of the court is "to determine and recommend those available alternatives which are in the best interests of the child"39 The traditional guardian ad litem conducts an independent investigation to uncover all facts and circumstances relevant to the custody issue 40 but does not advocate an outcome or "represent" the child. 41 Laypersons often fulfill the traditional investigative guardian ad litem role as substitutes for or in addition to mental health professionals, court services officers, or social work professionals. The investigative function includes interviewing the parents and all other persons who may have information relevant to the best placement for the child. The guardian obtains information from the parents and others about the child's background, including general heath, likes, dislikes, hobbies, and activities. The guardian may choose to visit each parent's home to observe the environment and the interaction between the parents, siblings, and the child, to gain insights into family dynamics, and to compare these observations with the parents' and child's description of family interaction. The attorney for a parent will want to make sure that the client's home is visited if the other parent has a home visit. The guardian will contact as many outside references as necessary to gain a picture of the child's situation, including teachers, Scout leaders, Sunday school teachers, counselors, physicians, and others who see the child on a regular basis. In appropriate cases the guardian may request psychological, psychiatric, or drug/alcohol examinations of the parents and child or even recommend a full-scale custody evaluation by a mental health professional. If the conduct of either parent endangers the child's physical or emotional well-being, the guardian's main task is to protect the child by all possible means. The guardian will obtain medical records; psycholog- 38. Howard Davidson, Collaborative Advocacy on Behalf of Children: Effective Partnerships Between CASA and the Child's Attorney, in LAWYERS FOR CHILDREN 17 (ABA Center on Children and the Law, 1990). 39. In re Marriage of Bamthouse, 765 P.2d 610,612 (Colo. Ct. App. 1988), cert. denied, 490 U.S (1989); In re Marriage of Rolfe, 699 P.2d 79 (Mont. 1985). 40. See, e.g., Ky. REV. STAT. ANN (3) (Michie/Bobbs-Merrill 1984); Braiman v. Braiman, 378 N.E.2d 1019 (N.Y. 1978) (guardian ad litem charged with responsibility of close investigation and exploration of the truth). 41. Nancy Neraas, Comment, The Non-Lawyer Guardian Ad Litem in Child Abuse and Neglect Proceedings: The King County, Washington Experience, 58 WASH. L. REV. 853, (1983).
8 60 Family Law Quarterly, Volume XXVI, Number 1, Spring 1992 ical and psychiatric records; school records and report cards; reports from social workers; and letters written on behalf of the parents from friends or relatives. The guardian will evaluate all professional reports for errors and weaknesses. The guardian will consider the expert's impartiality or neutrality and competence; the comprehensiveness of the evaluation; the adequacy of the procedures used; and the scope of any recommendations. Lawyers representing parents often express concern that the guardian ad litem or attorney appointed to represent the child will be considered an agent of the court and talk with the judge when the parties and attorneys are not present. If the guardian is a party to the lawsuit, an ex parte communication to the judges is and should be prohibited. 42 The attorney for the parents may want to get a reciprocal agreement that there will be no discussion of the case without the permission and presence, if necessary, of the parties' lawyers. The guardian ad litem has a duty to protect the "best interests" of a child, even if contrary to the child's wishes. 43 If there are mixed signals or the guardian believes what the child says he or she wants is not what he or she "really" wants, a trained child development specialist may be employed to decipher the child's verbal and nonverbal communications. If the wishes of a sixteen-year-old seem clearly contrary to the child's best interests, the lay guardian ad litem may argue against the child's wishes. Whether the child's wishes or the guardian ad litem's view ofthe child's best interests should be presented in court remains the most hotly debated topic for the attorney guardian ad litem. Some contend that since the ethical rules govern all attorney behavior in any capacity, a guardian who is an attorney must present the child's view rather than the attorney's view of the child's best interests. 44 Others believe that the line is not so distinct. One attorney suggests that if the child's expressed desires are contrary to the guardian's judgment as to the child's best interests, the child's position can be presented without comment, the child's position can be presented with an explanation as to why the guardian disagrees, or the child's position can be presented with arguments for a different result. 45 One court further blurred the line by finding that an attorney has the duty to advocate the child's best interests rather than the child's preference even though the attorney had not been not designated as a guardian ad litem Moore v. Moore, 809 P.2d 261 (Wyo. 1991). 43. Kingsbury v. Buckner, 134 U.S. 650 (1890). 44. Horowitz & Davidson, supra note 30, at Catherine M. Brooks, When a Child Needs a Lawyer, 23 CREIGHTON L. REV. 757, 779 (1990). 46. In re Marriage of Barnthouse, 765 P.2d 610 (Colo. Ct. App. 1988) (attorney for child in a divorce proceeding is required to present more than a position of parroting back the child's wishes to the court); In re Marriage of Rolfe, 699 P.2d 79, See also Virginia State Bar
9 Counsel for the Child 61 The child's communications with the guardian ad litem may not be confidentialy In some states the parents' attorneys can demand production of all notes of conversations between the guardian and other persons if relevant to the dispute. 48 The guardian's written recommendations as to the custodial placement that best serves the child's interests will be tailored to show how the recommended placement meets the state's statutory criteria. These recommendations should be available to the parents' attorneys prior to the hearing. Whether and how the guardian ad litem participates in the trial depends on the jurisdiction. 49 In many states the guardian has the same right as other parties' attorneys to make opening and closing statements but may not be called as a witness. 50 In some jurisdictions the guardian calls and questions witnesses and participates as a full party. 5 I At the very least, the guardian, as an appointed officer of the court, should have the right to be present at the hearing and to make a recommendationy A guardian ad litem may be called to testify to put his or her recommendation and report on the record. 53 The guardian's participation as a witness allows the judge and counsel to question the guardian under oath as to the basis for the recommendation. 54 But in some jurisdictions, the judge and attorneys receive the report before the proceeding, and it is accepted as an exhibit. The judge may refer to it as part of the record or include it as part of a stipulation. 55 The trial judge has discretion to admit the opinion of a duly appointed guardian ad litem for advisory purposes as long as cross-examination is permitted. 56 For example, in a South Carolina case, the court affirmed admission of the report of a guardian ad litem who had interviewed forty-one witnesses. The names were made available to the parents' attorneys so that they could have been deposed or called as witnesses. Twenty of them testified at trial and were subject to cross-examination. 57 Generally, the Committee on Legal Ethics, Informal Op. 345 (1979); Connecticut Bar Association Committee on Professional Ethics, Op , (1987). 47. STANDARD RELATING TO STATE OF FLORIDA GUARDIAN AD LITEM PROGRAM MINI MAL STANDARDS OF OPERATION 5.6 (1985). 48. Ross v. Gadwah, 554 A.2d 1284, 1285 (N.H. 1988). 49. See In re D.C., 426 N.W.2d 541, 546 (Neb. 1988) (guardian ad litem called more witnesses than the prosecution in a termination proceeding). See also Speca & Wehrman, supra note 4, at Richard Podell, The Role of the Guardian Ad Litem, 25 TRIAL 31 (1989). 51. In re D.C., 426 N.W.2d 541. But see Ross v. Gadwah, 554 A.2d at 285 (guardian ad litem is a party and not legal counsel for the child). 52. In re Marriage of Barnthouse, 765 P.2d 610 (Colo. Ct. App. 1988). 53. Tara L. Muhlhauser, From "Best" to "Better"; The Interests of Children and the Role of a Guardian Ad Litem, 66 N.D. L. REV. 633, 639 n.31 (1990). 54. Ross v. Gadwah, 554 A.2d at See. e.g.. In re Marriage of Talkington, 762 P.2d 843 (Kan. Ct. App. 1988) (home study reports admissible without testimony of investigator if statutory requirements met). 56. Richmond v. Teck1enberg, 396 S.E.2d 111 (S.c. Ct. App. 1990) (social worker guardian ad litem report and testimony admitted). 57. [d. at 113.