What’s
the proper role of
the attorney serving as GAL?
By
Gregg Herman
July
30, 2007
The
guardian ad litem: A potted plant?
 |
| Gregg
Herman
|
A
social worker/ psychologist?
A
lawyer advocating for children’s wishes, or the children’s best interests,
or both? Much ink has been spilled over the GAL’s role, and much real and
virtual debate has taken place.
This
is the third in a series of articles discussing that role. In the first article
in this series, I discussed a controversy between the ABA Family Law Section and
Litigation Section over model rules for a GAL proposed by the National Conference
of Uniform State Laws Commission (NCUSSL). In the second article, I discussed
the role of the GAL in Wisconsin.
In
this article, I will discuss roles of lawyers for children other than the role
prescribed in Wisconsin.
Other
Options
The
dispute between the Family Law and Litigation Sections is whether a lawyer, when
acting as counsel for the child’s best interests, is acting in the role of
an attorney. In many respects in Wisconsin, as discussed last week, since the
GAL represents the “concept” of the best interests of the child, instead
of representing a client, the GAL is acting more as a social worker or a psychologist
— roles which a lawyer is usually ill-prepared to perform.
But
Wisconsin’s role is by no means the only one for a lawyer representing children,
and maybe not even the ideal one. The American Academy of Matrimonial Lawyers,
for example, adopted a model rule that would not allow the GAL to make a recommendation
to the court, based on a belief that such a role would be inconsistent with a
lawyer’s professional training. The AAML proposed role allows the GAL only
to call and cross-examine witnesses.
The
effect would be to make the GAL little more than a potted plant when it comes
to protecting children. Instead of helping to resolve custody cases by making
recommendations, the AAML model rule would encourage litigation, as that would
be the only means to get information before the court.
Some
states allow for the child’s lawyer to serve as an advocate for the child’s
wishes, usually after the child has attained a certain age. While this role is
certainly consistent with the lawyer’s professional training, many children
simply do not want to choose between parents. As a very mature child once told
me: “If I tell you I want to live with my mom, I’ll feel guilty every
time I see my dad. If I tell you I want to live with my dad, I’ll feel guilty
when I see mom. I didn’t make this mess, so why should I be the one who has
to feel guilty?”
Where
a child does wish to express a preference, it may not be a wise choice. Some children
may prefer a parent with less rules and discipline. Other children may be subject
to bribery in the form of gifts or even cash (as happened in one case where I
served as GAL). Given the link between child support and placement time, the temptation
for a parent to campaign for a child’s preference will always be present.
Some
states have a hybrid between a best interests attorney and advocacy counsel. In
California, for example, a “minor’s counsel” must usually inform
the court of the child’s wishes, but does not necessarily have to advocate
for them. The statute does not specifically authorize minor’s counsel to
advocate for best wishes, but most will inform the court of their recommendation,
anyway.
Then,
there are some jurisdictions that provide neither advocacy nor best interests
counsel. In the worst of all possible worlds, there is no one in court specifically
charged with protecting the interests of the child.
None
of these approaches are perfect. Therefore, in the last article, I will suggest
what role might be served by counsel for children in my view of 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.
