Representing
children in family law cases
By
Gregg Herman
July
16, 2007
 |
| Gregg
Herman
|
In
April 2007, during the spring meeting of the ABA Family Law Section in Monterey,
Calif., a remarkable event occurred: Opposing groups of lawyers met for a full
day to discuss rules for serving as a representative for children in custody,
abuse and neglect cases.
Although
the role of a guardian ad litem, or GAL, is settled in Wisconsin, the issue is
highly contentious elsewhere. The dispute illustrates that, while the GAL role
in Wisconsin is not perfect, it is better than most other alternatives.
This
is the first in a series of articles examining the role of the lawyers for children
in family law cases.
The
GAL:
Just
a Potted Plant?
The
dispute regarding the role of the GAL has a long history.
In
1994, the American Academy of Matrimonial Lawyers adopted guidelines for representing
children. 13 J. AM. ACAD. MATRIM. LAW. 1 (1995). These guidelines prohibited a
lawyer from making a recommendation on behalf of the children — rendering
the lawyer into little more than a potted plant.
Judge
Patricia Curley of the Wisconsin Court of Appeals and I criticized these guidelines,
contrasting them to the role of a GAL in Wisconsin, in an article in the Academy
journal. Patricia S. Curley and Gregg Herman, “Representing the Best Interests
of Children: The Wisconsin Experience,” 13 JAAML 1 (Summer, 1995).
In
2003, the ABA Family Law Section adopted its own set of guidelines for lawyers
representing children (Full disclosure time: I was part of the drafting committee).
American Bar Association, Standards of Practice for Lawyers Representing Children
in Custody Cases, 37 FAM. L. Q. 129 (2003).
These
guidelines differentiated two different models. One model is where, as in Wisconsin,
the lawyer advocates the best interests of the child. In the second model, the
lawyer advocates the wishes of the child as child-directed counsel. The guidelines
did not express a preference for one model over the other, but distinguished the
nature of each role and its responsibilities.
Although
rejecting a hybrid of the two roles, the role of the best interests attorney was
designed to require the lawyer to consider the child’s objectives of representation
when determining what to advocate and to present the child’s objectives to
the court, if the child so desires. As such, the best interest attorney contains
aspects of a child’s attorney, while not being bound by the child’s
objectives of representation.
In
July 2006, the National Conference of Commissioners on Uniform State Laws, or
NCCUSL, adopted its own proposal for representation of children in abuse, neglect
and custody proceedings.
(www.law.upenn.edu/bll/archives/ulc/rarccda/2006_finalact.htm)
This proposed uniform act mostly follows the ABA guidelines by differentiating
between the two roles. Again, the NCCUSL model rules did not express a preference
for either role, while rejecting the concept of a hybrid role.
When
NCCUSL sought approval of their model rule by the ABA, the Litigation Section
objected. Their objection was to the “best interests” role, not the
advocacy role. According to the Litigation Section, a lawyer serving in the “best
interests” role was not acting as a lawyer, but rather acting as a social
worker or a psychologist. The Litigation Section did not believe that lawyers
are trained or equipped to properly handle this role. This non-lawyer role is
most apparent in jurisdictions without family court counseling services. In those
jurisdictions, the GAL must perform an investigation into the best interests of
the child without expert assistance. This investigation includes interviewing
parties, witnesses and experts, and may include personal investigations, like
home visits. At the end, the GAL reaches an opinion as to best interests. This
investigative process is not a traditional role for a lawyer and frequently, the
lawyer lacks the necessary education and training to reach this opinion. In fact,
the GAL may have no more expertise to reach this opinion than any layperson off
the street.
In
addition, there are problems with getting the recommendation before the court.
The GAL does not testify at trial and is not subject to cross-examination. Therefore,
getting the recommendation before the court is problematic and sometimes involves
multiple layers of hearsay.
Where
children are old enough to express a preference, and for their preference to be
given credence, there is an additional problem, as most would agree: that bringing
children into court is inappropriate.
Deciding
when the child’s preference should be expressed and how, without violating
rules of evidence, is not easy.
The
AAML guidelines resolved these issues by having the lawyer act solely as participant
in the litigation, without having an opinion as to the results. But this role
does not help the parties — or the trial court — resolve issues short
of litigation, which is certainly injurious to the child. Having an attorney present
in court like a potted plan with no position to present solves the issue of the
lawyer’s role, but does nothing to help the child caught in the middle of
a battle between parents.
This
series will continue to examine:
- the
role of the GAL in Wisconsin;
- what
other roles can be performed by lawyers for children; and then,
- suggest
what the role of a child’s representative would be in a perfect world.
Gregg
Herman is a shareholder with Loeb & Herman S.C. in Milwaukee, which practices
exclusively family law. Herman can be reached by e-mail at gherman@
loebherman.com.
