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.
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 [email protected] loebherman.com.