A Comparative Analysis of the Use and Abuse of Minor's Counsel in the United States of America
By Frieda Gordon, Certified Family Law Specialist
Santa Monica, California, USA
Although every state has some legislative authority providing independent
access to the judicial process for any child in a custody dispute, each
state has a wide variety of ways of implementing that authority. In addition,
in each of those states there are numerous approaches and policies of
discretion that make such use unique to each venue, each judge and each
child representative. Use of Minor’s Counsel demands a need for
consensus and an adoption of uniform policies.
The representation of children is among the most difficult and rewarding experiences offered by the practice of law generally and family law in particular. The necessity of providing high quality legal services for children seems obvious. However, despite recognizing the need, meeting that need in a responsible, cost effective, even-handed way is far less obvious. The discrepancy between the legislative intention and the quality of the actual representation sometimes does a disservice to the child and to the public which maintains a trust of the highest order to do what is best for its children. Depending on the judicial officer who appointed the representative, the power of the child’s representative is sometimes too strong and sometimes too weak. Sometimes the court appoints too infrequently, sometimes not at all. Some judges appoint regularly, some appoint without just cause. Different jurisdictions have different models. Currently two doctrines of representation predominate: the doctrine of independent representation versus the doctrine of substituted judgment. Both models give rise to the good, the bad and the ugly.
The Good: Lawyers, judges and mental health professionals are still struggling to achieve common goals for the most efficient use of attorneys and guardians ad litem in family court by attempting to set uniform standards of practice.
The Bad: Powerful parties drive powerful lawyers to line up on one side of the child’s representative or the other which leads to protracted evaluations and many unnecessary court appearances.
The Ugly: Lawyers are allowed and even encouraged to wield ultimate authority despite insufficient training and negligible experience. Highly qualified attorneys who understand the complexities of the law and the dynamics of the parties are often discouraged from accepting appointments due to insufficient pay or judicial bias.
SURVEY OF DIFFERENT JURISDICTIONS
Minimum training and experience requirements vary from courtroom to courtroom unless they are regulated by the local government. Only a few states in the United States have such laws. New York, Wisconsin, Connecticut, Florida, California and Michigan are examples of states that have statutorily regulated the process, only leaving the scope of the lawyer’s duties and the weight of the recommendation to the discretion of the individual judicial officers. The appointments are usually made from a list of approved attorneys who have satisfied minimum education and experience requirements. Without that, the appointment of Minor’s Counsel is subject to the idiosyncratic discretion of the child’s advocate often not subject to review. The following is a comparative analysis of the laws in some of those states and other jurisdictions that regulate the use of children’s representatives in family law matters and the practical application of those laws.
NEW YORK STATE
In New York State, the Family Court Act, Article 2, Plan 4
“declares that minors who are the subject of family court proceedings or appeals in proceedings originating in the family court should be represented by counsel of their own choosing or by law guardians. This declaration is based on a finding that counsel is often indispensable to a practical realization of due process of law and may be helpful in making reasoned determinations of fact and proper orders of disposition. This part establishes a system of law guardians for minors who often require the assistance of counsel to help protect their interests and to help them express their wishes to the court.”
The law provides several options for selecting attorneys to represent minors. Those services may be provided through (1) a legal aid society, (2) a panel designated by a county, (3) an individual qualified attorney and (4) an administrative board of the courts to approve attorneys that are recommended by a local bar association, the term not to exceed one year, subject to successive appointments. The State of New York pays minor’s counsel $40 hourly for court time and appellate work and pays $25 hourly for out-of-court time.
New York’s minimum requirements include (1) 12 hours of introductory law guardian training conducted by the Appellate Division, and (2) (a) substantial participation either as counsel of record or as co-counsel with a law guardian mentor in a juvenile delinquency or person in need of supervision proceeding, a child abuse, child neglect or termination of parental rights proceeding and (b) substantial participation in a custody or visitation proceeding and participation as counsel or co-counsel in or observation of two hearings in Family Court at which testimony is taken. To be eligible for re-designation, the law guardian must complete within the preceding two years at least six hours of training and education for law guardians. The Law Guardian Advisory Committee is responsible for oversight of the Law Guardian Program and establishes Law Guardian Liaison Committees in the various county courthouses. Although the compensation is unbearably low to permit experienced attorneys to maintain a viable practice, New York offers law guardians the help of the Litigation Support Service that provides case consultation and legal research on such matters as novel or complex questions of law, litigation planning and strategy, use of experts, investigations and trial tactics. Despite law guardian appointments still remaining discretionary, law guardian participation is now fairly routine and a court’s failure to appoint may constitute an abuse of discretion. Because it would be inconsistent with the purpose and role of an attorney, New York law forbids the child’s attorney from submitting a pre-trial report. She or he may, however, provide the court with a post trial memorandum summarizing and discussing the evidence, making legal arguments and advocating a disposition.
The Law Guardian has standing to initiate and argue an appeal. The appointment continues through appeal, despite which party initiates that appellate process. The attorney may request that the court appoint separate counsel for purposes of perfecting the appeal. The Law Guardian is not usually relieved as a rule, but is required to keep in touch with the child, initiate inquiries or otherwise stay abreast of the situation and, where necessary, should seek modification or enforcement of the court’s orders. The New York State Bar Association Committee on Children and the Law recently revised its standards to require the Law Guardian to consider the impact of domestic violence on the child.
Wisconsin uses the term “guardians ad litem,” in lieu of the terms law guardians or minor’s counsel. Appointment is mandated in every case in which the child’s welfare is at stake. These GAL’s must also be members in good standing of the bar. They advocate for the best interests of a minor child in paternity, legal custody, physical placement and support actions. They are required to consider, but are not bound by, the wishes of the minor child or the positions of others in deciding on the best interests of the minor child. Unless the child requests otherwise, the GAL must communicate the child’s wishes to the court. Courts there rely heavily on GAL’s in making rulings on custody and placement issues. However, statutory and case law provides little definition of the role of guardian ad litem. Local rules vary from county to county and courtroom to courtroom. If a local rule contradicts the guidelines promulgated by the family law section of the Wisconsin State Bar, the local rule prevails. The GAL may retain social workers or other experts where appropriate. However, because it is assumed that the parents will be sharing in the costs of these experts, caution is stressed in making such requests for experts. In the case of indigent parties, the county will pay the fees and costs in an amount not to exceed the compensation paid to attorneys representing indigents in criminal matters.
The interfacing of GAL’s with other professionals varies greatly from county to county. In La Crosse County and Fond du Lac County, the GAL’s work as a team with social workers and psychologists. The psychologist does any necessary testing and the social worker does the home visit, interviews of sources and the like, and the GAL serves as the lawyer. As a result, far fewer cases get litigated in those counties. A major gap in the system is the lack of any procedure for removing minor’s counsel for cause. Many counties have contract systems, where several lawyers split the GAL cases and are paid a salary. Because of the lack of funding, most courts experience problems getting qualified and experienced family law attorneys to represent minors in complex, emotionally and physically exhausting and never-ending custody and visitation matters. The attorney does not have the ability to testify. Hollister v. Hollister, 173 Wis.2d 413, 496 N.W. 2d 642 (Ct. App. 1992). The attorney holds all of the evidentiary privileges for the minor child and makes recommendations to the Court.
In Florida, the GAL is not necessarily an attorney. The job there is more of a traditional guardian ad litem appointment, i.e., the GAL stands in the shoes of the child, as distinguished from the guardian of a person, where the person having responsibility for the ward for the most part, stands in the shoes of the parent. Representing children in Florida involves a fiduciary responsibility to protect and advance the child’s best interests. The GAL has authority to protect and advance the child’s best interests only in the context of the litigated matter and may make recommendations based on the guardian’s view of what is in the best interests of the child. The GAL should consider the child’s wishes and should inform the court of those wishes, even when they differ from the GAL’s position. However, the GAL need not be bound by the child’s expressed desires.
Pursuant to Florida Statutes Section 61.403, the GAL acts as a “next friend.”of the child and as an investigator or evaluator, but not as an advocate or attorney. Roski v. Roski, 730 So.2d 413 (Fla. 2nd DCA 1999). The GAL must disclose all actual and potential conflicts of interest and can be removed for such conflicts. Florida has a number of appellate court cases that have closely defined the role of the GAL. In a paternity matter, the court defined the conflict of interest issue to exclude either a mother or a putative father from serving as GAL’S since his or her positions were inherently in conflict with the child’s possible best interest. Gilberson v. Boggs, 734 So. 2d 123 (Fla. 4th DCA 1999), See also Gumberg v. Gumberg 745 So. 2nd 554 (Fla. 4th DCA 1999) addressing issue further. Because of the potential for conflict is so great, GAL’s in Florida are cautioned to exercise discretion in representing siblings.
In Perez v. Perez, 24 FLW 2439 (Fla. 3d DCA 1999), the court defined the role of GAL as follows:
“The universally recognized function of a guardian ad litem in a custody dispute is to protect the best interests of children. Litigation involving custody issues can be particularly acrimonious and, unfortunately, children are particularly vulnerable to the harms commonly associated with hostility and conflict between parents. Guardians ad litem serve an important role, under limited circumstances, by acting as representatives of children and promoting society’s interest in protecting children from the traumas commonly associated with divorce and custody disputes.”
The court also held that the GAL was not a party to the proceedings and
did not have a right to participate in the appellate proceedings.
The GAL in Florida has many of the duties available to a minor’s counsel in California or law guardian in New York or GAL in Wisconsin. These include investigating the allegations, interviewing witnesses, interviewing the child, examining privileged records and requesting expert examinations. In Florida, the initial appointment order of the GAL usually includes the right to perform these tasks without having to make motions or subpoena records. GAL’s may hire attorneys to perform the legal tasks where and when required. However, they are obligated to file and serve written reports giving recommendations and a statement of the wishes of the child at least 20 days before the hearing date. Since this report is hearsay, the GAL is expected to testify and the court must permit the introduction of evidence to rebut the report’s conclusions. Leinenbach v. Leinenbach, 634 So.2d 252 (Fla. 2nd DCA 1994)
The Florida legislature has defined confidentiality of a GAL to exclude any privilege between a GAL and a minor child, even when the GAL is an attorney. Because the GAL will most likely come under attack by one or both parents, once the report has been filed and served, it is common for the GAL to ask the judge to define the role of the GAL in terms of his or her powers, scope of participation and duties and responsibilities at a status conference. However, by statute GAL’s have complete immunity from any civil or criminal liability. F.S. Section 61.405. Because the statute gives rise to a presumption that the GAL is acting in good faith, this grant of immunity is not absolute, the potential for conflict is often great. Moreover, exposure to malpractice is also a real threat for conduct falling below the reasonable conduct of a GAL. Potential concerns for malpractice include failure to adequately investigate, meet with the child, review records, obtain disclosures, maintain contact with the child, adequately participate in the court proceedings, present the child’s wishes to the court or exercise reasonable skill and care in the performance of his or her duties. Lastly, GAL’S must be aware to take all steps necessary to protect the child in the presence of issues of domestic violence.
The State of Connecticut employs both guardians ad litem and attorneys for minor children. There, GAL’s do have immunity, but attorneys do not, although case law has greatly limited the power given to a party to attack a child’s counsel. The State offers a grievance complaint form that has a special box to check if the respondent is a child’s attorney. In that case, the grievance committee will scrutinize the complaint very carefully before proceeding. Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676 (1998). Unless the parties are on welfare, the parties pay proportionally to their income. Fees tend to be “reasonable” rather than purely hourly. Whitney v. Taplin, 24 Conn. L. Rptr. 610, Ops. 676 (1999), also at 20 Conn. L. Rptr. 610 (1998). The minor child, not the attorney, holds all evidentiary privileges. Busby v. Barbarula, 24 Conn. L. Rptr. 689 (1999)
Connecticut General Statutes Section 46b-54 govern appointment of counsel or GAL for a minor child. The attorney or the GAL for the child may participate in the appellate process and file a separate brief, if appropriate.
In Virginia, the guardian ad litem has many roles. There, they must be
certified to be appointed. However, they are drawn from the same pool
that also serves abuse and neglect cases, adoption and incapacitated adults.
There is no statutory authority to appoint a GAL for a child in a family
law custody and visitation matter. Nonetheless the courts routinely appoint
GAL’S. This is justified by the Virginia Court of Appeals on the
basis of long custom and usage, inherent equity jurisdiction, parens patria
authority and the best interest of the child. Verocchio v. Verocchio,
429 SE2d 482 (Va.App. 1993). There is a single statewide list of trained,
qualified GAL’s for all purposes. But when no one from the list
is “reasonably available, a judge... may appoint any discreet and
Va. Code §16.1-266.
Technically, the statute encompasses Juvenile Court appointments, not family law. However, the family law court uses the guardian ad litem in the same way as the Juvenile Court. In Circuit Court where the family law matters are heard, most of the time the parents pay according to how the court determines their ability to pay. Its rules specify that the role of counsel for a minor child is to represent the child’s legitimate interests and “vigorously represent the child, fully protecting the child’s interest and welfare... ” The GAL can conduct investigation, but rarely calls witnesses to testify in hearings or depositions. Occasionally they might file discovery requests. They do write written reports shortly before the hearing date. The GAL can be cross-examined. The GAL, under Virginia Supreme Court Rule 8:6, must advise the court of the child’s wishes in any case where those wishes conflict with the GAL’s opinion “as to what is in the child’s interest and welfare.” Payment of GAL’s is at the same rate of pay as that of lawyers in Juvenile Court and Criminal Court defense lawyers. Va. Code §§16.1-267; 19.2-163.
A few years ago, former Governor Wilson signed into law AB 1526, which introduced many modifications to the statutes regulating the use of minor’s counsel by including a clearer definition of the role. The legislature determined that role to be a hybrid between representing the child’s best interests, akin to a guardian ad litem, and representing the child’s interests as the advocate of the child’s position. This law requires the child’s attorney to file and serve a written Statement of Issues and Contentions ten days before a hearing, if so ordered by the judge. New section 3151.5 of the Family Code now permits any party to subpoena as a witness anyone the attorney for the minor lists in the statement as having provided information to him or her, but precludes a party from calling the minor’s attorney as a witness. In addition, Section 3151(a) has also been amended to change the obligation of minor’s counsel from representing the child’s interests to representing the child’s best interests. This gives legislative authority to those attorneys who have already interpreted their role as hybrid one. This new law has not stripped the minor of his or her rights and privileges. The attorney for the child must still keep information received from the client confidential, except for that information that the client wishes his or her lawyer to present to the Court. The lawyer for a child must advocate zealously the client’s desires and wishes, though the lawyer may also contemporaneously provide to the Court contradictory information received through the lawyer’s investigation of the facts in the case. Although it died on the governor’s desk, new legislation was introduced last year providing for immunity of minor’s counsel. Although the statute authorizes the Judicial Council to develop a model statement of issues and contentions, to date, none have been adopted, although sample forms have been submitted. Minor’s Counsel has now gained some measure of credibility as an officer of the Court that has the authority to gather evidence and information about the child, marshal resources for the child and for the caretakers for the child, provide a more neutral ground upon which to entertain settlement proposals and maintain the integrity of the attorney-client relationship. However, much work still needs to be done to protect the child from abusive parents and abusive litigation.
There are a number of remaining issues the legislatures and local courts must address. These include the issues of whether to provide full or quasi-judicial immunity to the child’s attorney and whether to compensate minor’s counsel at rates reasonable sufficient to assure that children receive the most competent and experienced representation possible within the constraints of local county budgets. Except in the rare high-earner custody or visitation dispute, lawyers for children are never paid sufficiently to compensate them for the overwhelmingly time-consuming and resource-draining litigation which inevitably accompanies their appointment. Middle income parents or grandparents may be ordered to pay the attorney’s customary rate of pay. Rarely, however, are there sufficient assets to ensure payment within a reasonable period of time. Since these cases are so all consuming, this can quickly drain the attorney’s cash flow. Children’s attorneys in Family Court need to be the most expert, the most psychologically attuned and the best trained attorneys available. Like most counties in California, Los Angeles County has no standards for payment of attorneys’ fees for minor’s counsel. However, to attract seasoned, specially trained and particularly motivated attorneys willing to take on the most difficult and emotional and physically exhausting family law representation, Supervising Judge Bobb has set a minimum $125 hourly rate.
There is little consistency about what is needed to afford proper representation for the children who have been abused by a system that purports to be considering their best interests. Those who practice in this field realize that there is a tremendous margin for error between minor’s counsel’s and the judges’ lack of training and expertise. Attorneys require help to properly represent the children whose rights are abrogated by myopic and sometimes abusive parents who are usually unable to cope with the issues of their own failed relationships. The risks are too great where judges and lawyers have unbridled discretion. If misused, not only will government money be misspent, but the children will be victimized by the government intending to help them. The attorney for the minor should not be allowed to be the decision maker, although often he or she is.
According to Katherine Hunt Federle, ABA Family Law Quarterly, Fall
2000 ed., Vol. 34, No. 3, and Donald N. Duquette, Child Advocacy Law Clinic,
University of Michigan Law School, ABA Family Law Quarterly, Fall 2000
ed., Vol. 34, No. 3, in abuse and neglect cases, 23 states use CASA’S
(court-appointed special advocates, utilized in every federally funded
case), 41 states use GAL’S and 25 states use counsel. In family
law cases, 40 states appoint counsel, 30 states appoint GAL/Counsel, 10
States Appoint GAL and Counsel,10 states appoint no attorney and, of those
10 states, nine states appoint a GAL only.
Why is what is best for a child in Cleveland not best for a child in Omaha? Should a national task force be established to address this issue and to provide the courts and states an incentive to follow their rules as is done in abuse and neglect cases? Is it not clear that the government must provide reasonable compensation to an attorney entrusted with a child’s life in a custody and visitation dispute? Perhaps licensing the attorneys that represent children as a sub-specialty would be best. Because of the mandate for federal funding, Guardians Ad Litem have more training than lawyers, but lawyers have far more discretion. GAL’s often are volunteers or minimum wage lawyers comparable to indigent criminal defense panel lawyers. Because of the vast difference in overhead between a dependency or criminal court case and a family law case, the rate of pay should not be compared.
Some states have recently developed an “empowerment model” that replaces the “best interests” model, to better address the need to meet high quality legal services for children in family law. Michigan recently developed a new statutory scheme that clearly defines two distinct and separate roles: substituted judgment versus child advocate. In England, the government has begun using the dual representation system. Representing Children in England, Judith Masson, Prof. School of Law, University of Warwick, England. The 1989 Children’s Act provides for appointing both a GAL and a solicitor specialist at public expense. Seen as a potential model for countries seeking to put into practice the European Convention on the Exercise of Children’s Rights, as implemented by the Council of Europe in 1996, the Guardian attends all hearings and submits a written report on the interests of the child before the final hearing. The Guardian must report both on the child’s wishes and the child’s welfare. Nevertheless, the system is not really interested in the child’s participation, so the result is that of one more thing that happens to an abused child.
This is a highly specialized, intricate practice that encompasses a myriad of disciplines, complex systems, crushingly high case loads, pervasive over-representation of minorities and conflicting laws and policies. Jane M. Spinak, “Role of Strategic Management Planning in Improving Representation of Clients: A Child’s Advocacy Model.” Many courts give and sometimes attorneys independently assume a great deal of power in mediating disputes, exercising authority, advocating positions and recommending solutions. The potential for abuse of power occurs when the attorney for the child fails adequately to investigate, meet with the child, review records, obtain disclosures, maintain contact with the child, adequately participate in the court proceedings, or present the child’s wishes to the court. The lack of adequate training and funding to produce minimally competent professionals in this field, is one of the more acute problems of this sometimes haphazard system of appointment. This allows inexperienced child advocates to assume more control over the case than statutorily and ethically permitted.
Deciding what is best for a child poses questions no less ultimate than the purposes and values of life itself. Robert Mnookin, In the Interests of Child: Law Reform and Public Policy 18 (1985). The ABA Task Force, the Fordham Conference on the Ethical Issues in Representing Minors, and the National Association of Counsel for Children all limit lawyers for impaired children to advocating legal interests set out in objective sources of law such as legislation, case law and standards of attorney conduct. The Fordham recommendations were based upon a premise that lawyers exercise too much discretion in determining “best interests’ and that there are few principles to guide practitioners among the myriad of possible outcomes. 64 Fordham L. Rev. 1281 Mar. 1996 at 1309. (Fordham Conference on the Ethical Issues in Representing Minors). This is in contrast to a lawyer imposing his or her personal views in the child’s interests unguided by outside authority. From an empowerment perspective, children should have rights that redress their powerlessness, rather than promote it.
The future of the use of minor’s counsel lies in ensuring that the emphasis of the representation is on the child’s vindication of his or her rights, rather than on the child’s vulnerabilities and dependence. Concomitantly, the remedy for the abuse of power of minor’s counsel is to empower the children to participate. Jean Koh Peters, “Representing Children in Child Protective Proceedings: Ethical and Practical Dimensions,” describes three major trends. First, 35 states tie child’s best interests to the representative’s role. Second, little uniformity exists about what best interests means and what it means to represent those interests. Third, the reliance on certain models of representation appears to be based as much on funding concerns as on a belief in the value of the program, Id at p. 30-32. Although there are exceptions to the model standards, there are no guidelines when to depart from the norm.
Rights are a means to power. Rights reduce the victimization of children. Enforcing a right of a child does not depend on an acknowledgment of the child’s dependence and vulnerability because capacity is not central to the empowerment rights theory. The Best Interests Model allows the GAL or the attorney for the child, or both too much discretion because of the many loop holes in the law, laws that are too broad, and policies that are too indeterminate. In the empowerment rights model, an attorney and a GAL are used in every case. As such, the attorney advocates the expressed wishes of the child or, for the non-verbal child, advocates the legal interests of the child, but never uses substituted judgment. Believing that power is a fundamental aspect of human relationships, the empowerment rights model acknowledges the experience of powerlessness to construct rights for children and recognizes that a child should be an active and respected participant in proceedings affecting his or her custody.