What kind of GAL are you?

Guardians ad litem  (GALs) function in a variety of roles, with extremely different training, backgrounds and purposes across North America. Despite these distinctions, GALs share the responsibility of serving as the court's eyes and ears. GALs are tasked to investigate and report back to the court on matters that will inform the court's understanding of and decisions in the service of the best interests of the child.

In some jurisdictions, a GAL or a children's attorney is hired or appointed to represent the child's wishes (as distinct from the child's needs) before the court. In still other jurisdictions, there are specific subtypes of GALs tasked to advise the court in very narrowly defined matters. For example, in Massachusetts, the court can appoint a GAL to investigate the child's needs and a second GAL to investigate whether the child's psychotherapy privilege should be waived

Across these many and varied roles, GALs, CASA workers and children's attorneys must be held to the highest standards of impartiality, sensitivity, and investigative methods. Observations, inferences and recommendations must be informed by contemporary research, a depth of knowledge about child development and family functioning, and an ability to reasonably anticipate future needs.

"... there is profound controversy over the role that lawyers for children should play in family proceedings. Should they play the traditional role of lawyers, acting on the 'instructions' of their child clients, or are they to be 'friends of the court,' ensuring that all relevant evidence is available but not advocating for any position, or is the role to advocate for the best interests of the child based on the lawyer’s assessment of the proper position to advocate?" Bala, N., Birnbaum, R. and Bertrand, L. (2013), Controversy about the Role of Children's Lawyers: Advocate or Best Interests Guardian? Comparing Practices in Two Canadian Jurisdictions with Different Policies for Lawyers. Family Court Review, 51: p. 681.

Family Law Consulting PLLC and Dr. Garber work with counsel, the courts, and GALs themselves to assure that the investigative process is consistent with these criteria as well as jurisdictional mandates and the court's specific expectations.

Read more here:

• Bala, N., Birnbaum, R. and Bertrand, L. (2013), Controversy about the Role of Children's Lawyers: Advocate or Best Interests Guardian? Comparing Practices in Two Canadian Jurisdictions with Different Policies for Lawyers. Family Court Review, 51: 681–697.
  
• Shapse, Steven N (2010). Serving as a guardian ad litem. In Walfish, Steven (Ed), (2010). Earning a living outside of managed mental health care: 50 ways to expand your practice, (pp. 177-179). Washington, DC, US: American Psychological Association.
• Taylor, L. (2009). A lawyer for every child: Client-directed representation in dependency cases. Family Court Review, 47: 605–633.
  

  The voice of the child?

The movement across North America to invite the child's opinions (and in some cases, the child him- or herself) into family litigation raises important questions about how and when and why the child might be heard, and by whom. The task is often assigned to the GAL or the children's lawyer or, in some cases, is explicitly ordered in the form of a "voice of the child report" (read about one approach to this process here ).

Family Law Consulting PLLC and Dr. Ben Garber lead the way in identifying the various systemic pressures that can corrupt the child's voice including scripting, coaching, bribes and threats, enmeshment, estrangement and alienation. Anticipating and minimizing or -after the fact- identifying these destructive influences will help to determine the weight that should be given to the child's voice.

"... the Child’s Attorney must determine whether the child is of diminished capacity under the Model Rules of Professional Conduct and, if so, must treat the client accordingly under Rule 1.14. Specifically, the attorney may, if all other remedial measures are inadequate, override the child’s wishes and advocate a position that the child would take, but for the brainwashing of the child used to alienate him or her from a parent. Rosen, J. (2013), The Child's Attorney and the Alienated Child: Approaches to Resolving the Ethical Dilemma of Diminished Capacity. Family Court Review, 51: p. 330.

Consider:

• Does the enabling order explicit request that you interview the child or otherwise determine his or her wishes?
• If you are tasked to interview the child,  do you have the requisite skills?
  
• If you interview the child, do you do so in your office? In court? At the child's home?
• How might the parents have influenced the child's expressed wishes?
  
• Will there be a record of the interview? If so, who will have access and what will you tell the child? If not, how will you handle due process concerns if your report incorporates the child's input?
• If you interview the child, who else will be present? Counsel? The parents?

Here's what we know in very brief form:

• Children want to feel that their voice has been heard, even if the eventual court's ruling is inconsistent with their wishes.
•  Children who feel that their voice has been heard are more likely to comply with the court's rulings.
• The child's expressed opinions are easily and often contaminated by a wide variety of systemic confounds. The GAl's familiarity with these confounds and careful planning to minimize their impact will better serve the child and protect the professional from disciplinary measures.
  

Read more here

• Birnbaum & Bala (2009), “The Child’s Perspective on Legal Representation: Young Adults Report on Their Experiences with Child Lawyers,”  Canadian Journal of Family Law, 25(1), 11- 71.
• Birnbaum & Bala (2010) , “Judicial Interviews With Children In Custody And Access Cases: Comparing Experiences In Ontario And Ohio,” International Journal of Law, Policy and the Family.
• Fernando, M. (2014), Family Law Proceedings and the Child's Right to be Heard in Australia, the United Kingdom, New Zealand, and Canada. Family Court Review, 52: 46–59.
•  Miller, S. (2014), Judicial Discretion and the Voice of the Child in Resolving Custody Disputes: Comments on the Think Tank Report. Family Court Review, 52: 198–199.

Expert consultation to GALs, children's attorneys, and CASA workers

Family Law Consulting PLLC provides expert direction to front-line investigators from appointment through testimony, including:

Prophylaxis: Planning the investigative process so as to remain impartial, balanced, child-centered, consistent with contemporary best practices, and relevant ethical and jurisdictional guidelines.

• Service agreement: Creation and delivery of an initial contract detailing the nature and limits of the proposed process
• Front-loading: The selection and solicitation of preliminary data intended to focus the the investigation and streamline the process
  
• References and collateral materials: Assuring that third-parties provide informed assent and provide data in a time- and cost-efficient manner
• Interviews: Who to interview, when and how? How to minimize and recognize sequence and proximity effects, systemic confounds (e.g., alienation, estrangement, enmeshment) and leading questions.
• Observations: How best to elicit a representative sample of parent-child interaction.
• Integration, interpretation, and summary: Generating hypotheses built around the questions that the court needs answered.
• Deposition and testimony: Providing the court with credible, consistent and child-centered data

Preview and critique: Consulting to front-line investigators in preparation for deposition, testimony, and/or board defense. Family Law Consulting PLLC and Dr. Garber bring expertise in child development, family systems, divorce process and investigative best practices to bear on your work product so as to better prepare you to explain, defend and improve your skills.

Read more here:

• Lee, S. M., & Nachlis, L. S. (2011). Consulting with attorneys: An alternative hybrid model. Journal of Child Custody: Research, Issues, and Practices, 8(1-2), 84-102.
• Austin, W. G., Kirkpatrick, H. D. and Flens, J. R. (2011), The emerging forensic role for work product review and case analysis in child access and parenting plan disputes. Family Court Review, 49: 737–749.
• Association of Family and Conciliation Courts and Child Custody Consultant Task Force (2011), Mental health consultants and child custody evaluations: A Discussion paper. Family Court Review, 49: 723–736.
  
• Bow, J. N., Gottlieb, M. C., Gould-Saltman, Hon. D. J. and Hendershot, L. (2011). Partners in the process: How attorneys prepare their clients for custody evaluations and litigation.Family Court Review, 49: 750–759.