Counsel for the Child in Custody Disputes: The Time is Now

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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.

10 62 Family Law Quarterly, Volume XXVI, Number 1, Spring 1992 report of the guardian ad litem does not carry any more presumptive weight than other evidence in the case. 58 The recommendation is not binding on the court. 59 In practice, however, many judges adopt the guardian's recommendation. The guardian's responsibility is primarily to the court rather than to the client-at least for purposes of financial liability. Thus, it is common for courts to conclude that the threat of civil liability would seriously impair the guardian's ability to investigate facts independently and to report his or her findings to the court.60 Therefore, the guardian ad litem has absolute immunity for functions immediately related to the judicial process,61 e.g., testifying in court; prosecuting custody or neglect petitions; making reports and recommendations to the court. 62 Yet absolute immunity does not attach to acts that are clearly outside the scope of the guardian's recognized duties. 63 Moreover, immunity from civil suit does not protect the attorney guardian ad litem from responsibility for violations of the Model Code of Professional Responsibility. The attorney-guardian as advocate is in a different position. If the attorney is representing the child rather than the child's best interests, the attorney may not enjoy judicial immunity even if appointed by the court. 64 Perhaps legislatures should grant immunity to attorneys who accept appointments as advocates for children. 65 But in the absence of such legislation, an attorney who does not want to tax his or her malpractice carrier should at least clarify with the judge whether he or she is serving in a guardian ad litem capacity or as an attorney Richelson v. Richelson, 536 A.2d 176 (N.H. 1987). 59. Blake v. Blake, 541 A.2d 1201 (Conn. 1988) 60. Short v. Short, 730 F. Supp. 1037, 1039 (D. Colo. 1990)("without immunity, guardians ad litem would act like litigation lightning rods"); Ward v. San Diego County Dep't of Social Serv., 691 F. Supp. 238, 240 (S.D. Cal. 1988). 61. Collins v. Tabet, 806 P.2d 40, 45 (N.M. 1991); Penn v. McMonagle, 573 N.E.2d 1234, (Ohio Ct. App. 1990) (guardian ad litem for children in divorce held immune from malpractice liability); Cok v. Cosentino, 876 F.2d I (1 st Cir. 1989) (guardian ad litem in divorce case functioned as agent of court); Short v. Short, 730 F. Supp. at 1039; Ward v. San Diego County Dep't of Social Serv., 691 F. Supp. at See Gardner v. Parson, 874 F.2d 131 (3d CiT. 1989) (citing Kurzawa v. Mueller, 732 F.2d 1456 (6th CiT. 1984) (court held guardian absolutely immune when parents brought action against their son's guardian and others alleging constitutional violations arising from unlawful termination of parental rights); Myers v. Morris, 810 F.2d 1437 (8th CiT. 1987), cert. denied, 484 U.S. 828 (1987) (guardian appointed to investigate alleged sexual abuse had absolute immunity from damage claims for their reports). See also Briscoe v. LaHue, 460 U.S. 325, 335 (1983); Myers v. Scott County, 618 F. Supp (D. Minn. 1985). 63. Collins v. Tabet, 806 P.2d at (guardian ad litem who is not acting as a "friend of the court" is not entitled to immunity). 64. [d. at 51. But see Tindell v. Rogosheske, 421 N.W.2d 340 (Minn. Ct. App. 1988), affd, 428 N.W.2d 386 (Minn. 1988) (guardian must be free to engage in vigorous and autonomous representation of child and avoid harassment by disgruntled parents). 65. Collins v. Tabet, 806 P.2d at Tindell v. Rogosheske, 421 N.W.2d 340 (guardian ad litem in a paternity and child support action absolutely immune for his approval of an allegedly negligent father's child support obligation); Collins v. Tabet, 806 P.2d 40.

11 Counsel for the Child 63 Counsel for the Child Giving the child an effective voice in the custody proceeding requires full "representation" by an experienced lawyer who has special training in meeting the legal needs of children. 67 Ideally, states should have publicly funded counsel for children, lawyers whose full-time job is representing children. Counsel, whether or not described as a guardian ad litem, should take an advocacy role representing the child's best interests just as an attorney represents his or her client. 68 Counsel for the child should neither duplicate the efforts of the CASA or guardian ad litem nor usurp the judicial prerogative to decide custody in the child's best interests. The child's counsel would ensure that the child's voice is heard and the child's interests are presented to the court. 69 The child's counsel would conduct an investigation of the case by interviewing the child, the parents, other persons, and the CASA or guardian ad litem, and by reviewing reports and records. Additionally, the child's counsel can prepare and file pleadings; initiate or participate in discovery; subpoena witnesses and documents; attend all court proceedings; present and examine witnesses in court; and appeal, if appropriate. While some fear that an additional attorney in the proceeding will maximize conflict or duplicate other professionals in the process, ideally the child's counsel is in an even better position to encourage settlement of disputes because of his or her knowledge of the law and ability to focus proceedings on the child. If the child's counsel can encourage the parents to reduce hostilities, the child will benefit. The child's counsel may even be a mediator (or at least "mediative") and facilitate communication. 70 Although representing a child client differs from representing an adult in many ways, a child's counsel would be subject to the same restrictions and have the same prerogatives as an attorney for an adult. A child's counsel has the same obligation as other counsel to zealously represent the best interests of the client,7' be trained in child advocacy,72 preserve 67. Davidson, supra note 3, at ; Richard Schwartz, A New Role for the Guardian Ad Litem, 3 J. DIS. RES. 117, 162 (1987). 68. In re Marriage of Barnthouse, 765 P.2d 610 (Colo. Ct. App. 1988); Veazey v. Veazey, 560 P.2d 382 (Alaska 1977) (child needs lawyer to vigorously present the case with same powers as parents' attorneys). 69. French v. French, 452 So. 2d 647, 652 (Fla. Dist. Ct. App. 1984); Provencal v. Provencal, 451 A.2d 374, (N.H. 1982), Eitzen, supra note 4, at 68-77; Speca & Wehrman, supra note 4, at 332, n.23 (1969). 70. Schwartz, supra note In re Baby Girl Baxter, 479 N.E.2d 257, 260 (Ohio 1985) (if attorney is appointed to represent person and is also guardian ad litem, first duty is to zealously represent the client within the bounds of the law; ifthere is a conflict over championing client's cause as attorney and service as guardian, attorney should be allowed to withdraw as guardian); MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.2, 1.3 (1983). See also Moore v. Moore, 809 P.2d 261 (Wyo. 1991); Brooks, supra note 45, at 761; Linda L. Long, When the Client is a Child: Dilemmas in Lawyer's Role, 21 J. FAM. L. 607, 611 n.9 ( ). 72. MODEL RULES OF PROFESSIONAL CONDUCT RULE 1.1 (1983) (an attorney should not

12 64 Family Law Quarterly, Volume XXVI, Number 1, Spring 1992 the child client's confidences, and avoid conflicts of interest. Counsel must represent the child's expressed position, assuming the child is old enough to express a reasoned opinion. 73 Information-Gathering Phase Upon appointment by the court, the child's counsel begins as any attorney by reviewing the court file with its copies of the pleadings and affidavits. Counsel may contact the attorneys for the child's parents to obtain background information and current visitation arrangement, to see whether the child is presently in therapy, and to discover what the parents perceive to be the problems and the nature of the parental conflict concerning the child. Counsel will meet with a guardian ad litem or CASA, if one has been appointed (or CASA's counsel), to coordinate activities. Obviously, counsel must meet the child, even if an infant. With an infant or small child, the visit may be observational. To dispel confusion about the roles of all of the players in the custody dispute, the child's counsel may want to meet with both parents, the parents' attorneys, the child, and any CASA or guardian to explain his or her role in the proceeding to everyone at the same time. Counsel may emphasize that he or she can only be "fired" by the court even though the parents ultimately may be responsible for the fees. 74 When meeting with the child, counsel first establishes rapport and assesses the child's competence, maturity, and ability to communicate verbally. Counsel should have a thorough knowledge of a child's developmental stages because the child's sense of time and understanding of what is happening in the legal proceeding affects the child's reactions to the parents, the proceeding, and the attorney. Counsel then explains the judicial process and his or her role in it in language the child can understand. Counsel should assure the child that anything the child tells counsel is confidential under the attorney-client privilege. 75 Counsel should encourage the child to contact counsel if there are any questions and give the child a business card with the counsel's office and home phone numbers. The child's counsel will ascertain the child's preference for living arrangements, not by asking the question directly, but by asking several questions designed to elicit the strength of accept representation unless competent to do so); MODEL CODE OF PROFESSIONAL RESPON SIBILITY EC 6-1 (1981). 73. MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 7-12 (1981); MODEL RULES OF PROFESSIONAL RESPONSIBILITY Rule 1.14(a) (1983) (attorney should use all possible aid from clients who can understand the matters in question and contribute to the advancement of their own interests); Horowitz & Davidson, supra note 30, at Weber v. Wallace, 789 P.2d 427 (Colo. Ct. App. 1989) (court apportioned costs of guardian ad litem to underemployed mother based on her potential income). 75. Brooks, supra note 45, at 761. But see Ross v. Gadwah, 554 A.2d 1284 (N.H. 1988) (attorney-client privilege found incompatible with the guardian's role as a party to and expert witness in custody proceedings).

13 Counsel for the Child 65 the relationship with each parent. With the trend toward the primary caretaker presumption, many of the questions will be focused on which parent has been the primary caregiver in the past. For example, a schoolage girl may be asked who wakes her in the morning, fixes her breakfast, packs her lunch or gives her lunch money, drives her to school or to afterschool events, and so on. The child's capacity to make judgments and guide counsel depends on whether the child can distinguish available options. 76 With a young child or one who is too immature to direct counsel, the child's counsel will advocate what the counsel perceives to be the child's best interests because the child may not be able to articulate a preference or position. Interviews with Parents and Others To represent the child requires a thorough knowledge ofthe child's current living situation and the child's relationships with parents and significant others. Therefore, both parents should be interviewed separately, as should any stepparents. While.a lay guardian may meet with each parent individually without the parent's attorney being present, an attorney guardian cannot interview a parent without permission from the parent's attorney.77 Ifthe guardian is the child's counsel, and the parents' attorneys do not cooperate, child's counsel may depose the parents. Since the child's counsel represents the child, what the parent says during the interview is neither privileged nor confidential. The parents are likely to cooperate fully with counsel's investigation, since refusal to cooperate or showing belligerent conduct may result in a negative report. An attorney acting as a guardian ad litem will undertake and accomplish the investigatory and reportorial obligations that are traditionally part of the guardian's task: discovering which parent has been the "primary caretaker"; obtaining medical and psychological reports on the child and the family; visiting the family home and observing family dynamics; and obtaining relevant information from teachers, neighbors, friends, and relatives. But an attorney acting as counsel should reexamine the propriety and necessity of such tasks, especially if a CASA or guardian has been appointed in the same case. For example, if the case involves an elevenyear-old boy who adamantly insists he wants to live with his father "come what may," counsel must determine whether to tax the parents with the cost of a thorough (perhaps duplicative) investigation ofthe entire family in order to represent his client adequately. Obviously, failure to prepare for trial would be inappropriate and unethical. But the kind of investigation a guardian would undertake would be wasteful and inappropriate as well. Indeed, one of the useful purposes of distinguishing between 76. MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.14 cmt. (1983) (older child's opinions entitled to weight). 77. MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR (1980).

14 66 Family Law Quarterly, Volume XXVI, Number 1, Spring 1992 guardians and counsel is to facilitate the different roles they serve. Of course, counsel for the child must investigate the facts, as any lawyer must, but the purpose of the investigation is to represent the client adequately, not to accomplish "justice" in the case at hand. The child's counsel will review any medical reports, psychological or psychiatric records, school records and report cards, and other documents relied on by either parent in his or her claim for custody. If the reports are contrary to the child's wishes or, for a young child, what counsel believes is in the child's best interests, counsel can review them critically for impartiality or neutrality and competence of the expert, comprehensiveness of the evaluation, adequacy of the procedures used, and the scope of the recommendation. Mini-Conference with Parents and Attorneys After the preliminary background investigation, the child's counsel should meet with the child again to discuss the preliminary results and to observe the child's reactions. If the child agrees, counsel may proceed, but if the child disagrees, counsel should ascertain the areas of disagreement. Is it counsel's view of who should be the primary residential parent, or does it have to do with a minor aspect of the investigation? Counsel should explain the basis for his or her position, but if the child is not persuaded, counsel should assure the child that his or her views will be made known to the parents, counsel, and the court if the matter goes to hearing. With the child's permission, counsel may request that the judge interview the child in chambers. How much the child's wishes influence the position the child's counsel takes obviously depends in part on the age and maturity of the child. The child's preference is used as a factor in nearly all jurisdictions. 78 A child who can make a "considered judgment"79 on his or her own behalf can direct counsel. A nonverbal infant can offer no assistance while a sixteenyear-old may be very articulate and clear about preferences. Ifthe child's preference is contrary to what counsel believes is in the child's best interests and the child cannot be persuaded otherwise, the child's counsel must present the child's position, withdraw, or perhaps ask that a guardian ad litem be appointed. 80 Note that in contrast, a guardian ad litem should report what he or she perceives to be the child's best interests even if contrary to the child's expressed preference.8' After counsel has prepared adequately, he or she may arrange a conference with the parents and their attorneys to give them a preliminary report. 78. Linda D. Elrod, Child Preferences 12-5 in CHILD CUSTODY VISITATION AND PRACTICE (1986). 79. MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 7-12; JUVENILE JUSTICE STAN DARDS 3. I (b)(ii)(c)(aba). 80. Horowitz & Davidson, supra note 30, at 10. 8!. Brooks, supra nj)te 45, at 779.

15 Counsel for the Child 67 If both parents are positive influences and the child wants continued contact with both, the child's counsel may try to encourage the parents to cooperate. Because continuing controversy may be harmful to the child, counsel can emphasize the positive aspects of both parents' parenting skills and encourage them to settle the issues as quickly as possible. Sometimes the parents will resolve the dispute through mediation, negotiation or family counseling. After hearing the well-documented, well-reasoned opinion of counsel representing their child's position, the parents may choose to compromise. Pretrial and Trial If the parties cannot agree, a hearing will ensue. Unlike the traditional guardian ad litem, counsel will not prepare a report that includes background information on the child and the parents, relevant statutory and case law, details of the investigation, copies of experts' reports, and recommendations about physical placement of the child. Instead, counsel will prepare for trial. Counsel for the child will from this point behave as any advocate for a child would. Counsel will decide which witnesses to call. Because the rules of evidence apply, the child's counsel will want to avoid any evidence that is based on hearsay, to prevent objections to its admission. 82 The child's counsel should get people who know the facts to testify in court to provide a reliable basis for decision. 83 Witnesses must be prepared; pretrial motions filed; negotiations, with and without the judge, undertaken; testimony presented; and cross-examination conducted. Counsel is an advocate for a client throughout. An appeal may be necessary if the client "loses."84 Qualifications and Training To be effective, a child's counsel needs a clear definition ofthe role to be performed, adequate training, reasonable compensation, and supervision. The major weakness of traditional guardians ad litem-failure to conduct adequate investigations and follow-up-is largely a result of poor reimbursement, heavy caseloads, and lack of supervision.85 For example, in one state capital, the five part-time guardians ad litem divide a caseload of 1,200 children-in-need-of-care cases and 2,500 juvenile-offender cases. 86 In too many instances, the guardian does not even meet with the child, 82. Sanfilippo v. Sanfilippo, 637 S.W.2d 77 (Mo. Ct. App. 1982). See generally Linda D. Elrod, Hearsay and Custody; The Twice Told Story, 21 FAM. L.Q. 169 (Summer 1987). 83. In re Marriage of Joens, 284 N.W.2d 326, 329 (Iowa 1979). 84. Allen v. Allen, 254 N.W.2d 244, 247 (Wis. 1977) (guardian ad litem possesses all the rights, powers, and obligations of a legal advocate, including the right of appeal and the right to continue in appointment throughout the appeal); Chambers, supra note 27, at 511, NATIONAL STUDY, supra note Craven, supra note 34, at 7.

16 68 Family Law Quarterly, Volume XXVI, Number 1, Spring 1992 but only reviews the file before making a court appearancey Adding contested custody cases only adds to the overburdening of existing guardians, Minimum experience requirements, training standards, and performance expectations must be adopted. Appointing inexperienced counsel to represent a child when both parents are represented by experienced counsel amounts to inadequate representation for the child. While only Wisconsin has statewide standards for guardians ad litem,88 several states are in the process of developing standards or have them in place in some counties. In addition to training in child advocacy, counsel should be required to complete a basic course in mediation. The child's counsel should have a basic understanding of developmental phases of children as well as an understanding of the effect on children of various custody and visitation arrangements. 89 At present, court-appointed guardians ad litem in abuse and neglect cases are paid minimal fees from state or county funds. 90 Some judges are reluctant to appoint guardians, even in juvenile court neglect proceedings, because compensation is minima1. 9! As long as compensation is so low, many experienced lawyers will not serve. Even in Hennepin County, Minnesota, where there are three part-time experienced attorney guardians ad litem provided by the district court, the guardians feel the pay is inadequate for the hours and work.92 In divorce and paternity cases, the cost of the child's counsel can be added to costs of the case when parents can afford it. Colorado currently allows the court to apportion costs of the guardian ad litem between the parents. 93 New Hampshire allows the court to apportion responsibility for payment between the adult parties with the court paying if the parents cannot. 94 Anecdotal information from a number of lawyers suggests that where the parents are well off and the issues difficult, at least some trial judges appoint attorneys or guardians and order the parents to pay them on their own authority. A public child-counsel system would provide the best trained, most competent pool of guardians. Such a program could be modeled on the 87. ld. See also NATIONAL STUDY, supra note WIS. STAT. ANN (West 1981 & Supp. 1990). 89. See generally JOSEPH GOLDSTEIN, ET AL., BEFORE THE BEST INTERESTS OF THE CHILD (1973); JOSEPH GOLDSTEIN, ET AL., BEYOND THE BEST INTERESTS OF THE CHILD (1979); JOSEPH GOLDSTEIN, ET AL., IN THE BEST INTERESTS OF THE CHILD (1986). 90. Richmond v. Tecklenberg, 396 S.E.2d III (S.C. Ct. App. 1990) (attorney for guardian received $50 an hour). 91. NATIONAL STUDY, supra note 8, at 42 (compensation for guardian ad litem ranged from $10 to $42 an hour with the average pay ceiling of $685 per case). 92. Dean, supra note 32, at Weber v. Wallace, 789 P.2d 427 (Colo. Ct. App. 1987) (court apportioned costs to underemployed mother based on her potential income). 94. N.H. REV. STAT. ANN. 458: 17-a II (Supp. 1990).

17 Counsel for the Child 69 Ontario "official guardian" child representation program in Canada 95 or even the Hennepin County program. 96 Federal and state governments could provide incentives to set up a public counsel program for children, while parents with the ability to pay could be charged, or an additional charge could be added to the divorce filing fee. Conclusion A child needs a court-appointed counsel when parents cannot agree on the primary residence or on visitation, as much as when the child is adjudicated dependent. The best way to do this would be through publicly funded child-counsel programs organized according to national standards and guidelines. The advent of the public defender system has improved the quality of representation of criminal defendants. Are our children less important than people accused of crimes? The time has come to stop complaining about the harms of contested custody litigation and to give children a voice in the legal determinations that so substantially affect their physical and mental well-being. 95. Davidson, supra note 3, at Dean, supra note 32.

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