Law Guardian Practice in Custody and Visitation
Proceedings
by
Carol Sherman and Barbara H. Dildine
(The Children's
EXCERPTS
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V. Preparation of a Case –
Role of the Law Guardian
A. Significant Issues
1. Domestic Violence
Many custody/visitation proceedings to
which CLC is assigned are accompanied by family offense petitions and/or
criminal proceedings, and orders of protection from Family or Criminal Court
alleging domestic violence. Cases of
domestic violence vary greatly in the severity, frequency and circumstances of
the violence. In some cases, the
violence may be of a pervasive and highly damaging nature. In others, it is an isolated incident less
likely to result in serious risk of harm to the child. Extensive research has demonstrated the
adverse impact of domestic violence on children, even when they are not
themselves physically abused or do not witness the abuse.
The abused parent¾most of whom are women¾may have suffered physical injuries as well as the emotional
and psychological trauma that accompanies domestic violence. The abuser’s power and control over the
victim has often left her with little self-esteem and a great deal of fear. She must face the challenges of establishing
her own household, of being a single parent and of becoming financially
independent. In some cases, she faces
continued and increased domestic violence, such as stalking behaviors, when she
leaves the relationship. In addition,
she must address the emotional effects of the violence upon herself and her
children.
The legal principle that a non-custodial
parent and a child are entitled to visitation unless such contact is proven to
be detrimental to the child presents the law guardian and the court with the
challenge of devising visitation that is safe and enhances the child’s
relationship with the parent given the domestic violence history. The child’s right to have a relationship with
a parent is independent from, although certainly greatly affected by, the
impact of domestic violence. The law
guardian plays a pivotal role in assessing the dynamics involved in the
particular case and the impact of domestic strife upon the child. In cases where domestic violence has
reportedly had a harmful effect upon the child, particularly one too young to
articulate in detail his or her observations and feelings, a full mental health
evaluation may be necessary to assess the child’s behavior and make
recommendations about a visitation plan that addresses the child’s emotional
needs and protects his or her physical well-being.
Supervised visitation is often ordered by
the court in cases where domestic violence is alleged against the non-custodial
parent. Unfortunately, there are only a
small number of programs and people spend months on a waiting list before
beginning visitation. Where supervised
visitation is initially recommended and a course of such visits occurs, a subsequent assessment must be made to determine whether
transition to unsupervised visits can safely be made. Some batterers may be able to control
themselves without difficulty for a one-hour session with a supervisor
watching, but may be unable to behave acceptably for longer periods without
supervision. Some children have liberal,
unsupervised contact with the parent accused of domestic violence, either from
the outset or after a period of supervision.
Ongoing assessment must be made to insure the child’s safety and monitor
the provision of services.
In cases involving domestic violence,
specific services may be required and law guardians often play a vital role in
connecting families with such services.
Victims of domestic violence may have suffered both physical injuries
and emotional trauma. Battered spouses
who have recently fled from their abusers often need housing and employment to
Children who witness domestic violence
often experience anger, depression, and fearfulness. Children who have not actually witnessed the
violence may have overheard the fighting and express both guilt and fear because
they did not intercede to help the victim.
Discussing with the parent the child’s need for therapy is an important
part of the law guardian’s role and assisting the parent in locating and
enrolling the child in such therapy is often necessary.
2. Child Protective Issues
CLC is assigned to numerous cases in which
non-custodial parents, as well as grandparents, older siblings, aunts or
uncles, and family friends, have informed both the CLC law guardian and the
court that he or she was “given” the child by the Administration for Children’s
Services (ACS) and/or was advised by ACS to file a petition for custody or
guardianship. Most of these relatives
were informed that, if they did not file a custody petition, the child could be
placed in foster care. Thus, at the direction of ACS, legitimate
abuse or neglect allegations are “converted” into custody proceedings. Common allegations include physical or sexual
abuse, neglect stemming from alcohol or drug abuse, excessive corporal
punishment, abandonment, inadequate guardianship, truancy and other school
problems, or failure to provide daily necessities, including medical and
therapeutic care. Proving abusive and
neglectful behavior in the context of a custody proceeding is difficult because
there is no child protective caseworker who gathers information, has access to
privileged information and can use the threat of removal in an effort to compel
parental compliance with services.
Therefore, the burden falls on the law guardian to
investigate these allegations. The law
guardian must conduct thorough interviews and check collateral sources, gather
information and present it to the court, assess the needs of her clients and
their families, connect the families with necessary resources and monitor
compliance with services. At CLC, the
lawyer can usually refer the case to the Social Work Unit. When referred, the CLC social worker assesses
the needs of the children and families and identifies services that would best
meet those needs. The social worker then
locates an agency and monitors compliance.
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D.
Pre-Trial Activities
The
Law Guardian then uses the information acquired in advocating at oral
arguments, pre-trial conferences, motions, and other pre-trial procedures, such
as applications for interim relief or temporary orders pending trial. The Commentary to Standard B-6 and B-7
explicitly declares that “[a] law guardian may of course advocate a position
and discuss the relevant available evidence and facts at pre-trial conferences .”
Additional
duties of a child’s lawyer in a custody proceeding
include the following:
·
Staying apprised
of other court proceedings effecting the child, the parties or other household
members;
·
Attending
meetings involving issues within the scope of appointment;
·
Taking necessary
action to expedite proceedings;
·
Participating in
depositions, pretrial conferences and negotiations;
·
Filing or making
petitions, motions or responses as necessary;
·
Where necessary,
requesting appropriate authorities to pursue other issues on behalf of the
child;
·
Requesting
independent court-ordered evaluations or studies when deemed advisable.
Temporary orders are often issued prior to trial and
are vital to protect children while endeavoring to resolve the issues presented
in custody/visitation proceedings. Each
party, as well as the Law Guardian, has the opportunity to state a position
with respect to any proposed orders and
·
Temporary orders
of custody and guardianship, to
designate who will assume responsibility and make decisions for children while
litigation is pending and to ensure that the children will receive necessary
medical and educational services;
·
Temporary orders
of protection, to safeguard children and their caretakers from domestic
violence and to insulate caretakers from custodial interference;
·
Temporary orders
of visitation, to comply with case law according non-custodial parents the
right to meaningful access to their children, while simultaneously protecting
the physical and emotional welfare of children (a) whose parent may have abused
them or others, or (b) whose parent has exposed them to domestic violence, or
(c) whose parent may have attempted or threatened to abscond with them, or (d)
who have little or no recollection of their non-custodial parent, or (e) who have
a remote or fractured relationship with their non-custorial
parent.
Temporary orders often serve as building blocks in a
process that involves forging and repairing parent/child relationships as well
as monitoring a child’s behavior and progress to assess what modifications or
changes should be made for the child’s benefit.
The Law Guardian relates pertinent, non-confidential statements of her
client, and may also convey relevant information derived from her interviews
with the parties or collateral sources as the basis for his or her position.
E. Assessment,
Referral for Services and Settlement
After the initial investigation is
completed, a preliminary assessment is made by the Law Guardian and social
worker (when appropriate) of the developmental needs and the wishes of the
child as well as the parenting abilities of the parties. Unlike other cases before the Family Court,
custody/visitation cases often do not have involvement by social welfare
agencies. Law guardians may refer
families for the following services:
·
Referral for
counseling or therapy for children who have witnessed domestic violence or who
are distressed by the hostility between parents or suffering the effects of
parental abandonment, maltreatment and other stresses; bereavement counseling
for children who have lost a parent and/or loved one; medical examinations,
special education evaluations, neurological examinations, neglect/abuse
assessments and follow-up on the course of these evaluations and treatments;
·
Referral for parenting skills for inexperienced
parents or those who need assistance in understanding a child’s problems or
needs or in utilizing appropriate disciplinary methods;
·
Referral of a parent accused of domestic
violence to anger management or batterers programs and of a parent who has
suffered domestic violence to appropriate counseling and, in some cases,
shelters;
·
Referral to a
certified social worker or authorized agency for supervised visitation where
appropriate; monitoring the progress of visits, whether supervised by a
non-professional supervisor (usually a family member or friend of the family)
or unsupervised;
·
Referral of
parents to substance abuse counseling;
·
Referral for educational evaluations for
children with developmental delays or behavioral problems; and
·
Referral for daycare and appropriate housing.
The
law guardian must address ongoing problems in the case such as a failure to
comply with a visitation provision or any other order issued by the court,
withholding a child from the lawful custodian, removal of the child from the
jurisdiction, absconsion or expulsion of the child
from the home, occurrence of an act of alleged domestic violence, illness or
death of a party, sudden plans for relocation, and allegations of abuse or
neglect. Updated information must
constantly be assessed with respect to its impact upon the child’s safety and
well-being, and the law guardian must resolve whether to alter the terms of
visitation, change custody, or provide other necessary services. Often, developments that occur after the
filing of the petition become determinative in the outcome of a case. Law guardians are frequently compelled to
bring emergency requests for relief in response to a crisis or other circumstances
requiring urgent attention by the court.
Such applications can be brought for a temporary change in visitation
terms, including suspension of visits.
These applications often require immediate interviewing, social work
assistance, home visits, and investigation of alternative custodial resources.
The law guardian should play an active
role in any settlement negotiations.
In considering a child-centered resolution in custody or visitation
cases involving domestic violence, several factors must be addressed including
the nature and extent of the violence, the child’s awareness of violence and
source of knowledge (personal experience or secondhand), whether any violence
was directed at the child, the child’s response to the violence, the child’s
desire for contact with the abusive parent and the possible risks in allowing
visitation, and the perpetrator’s acknowledgement of culpable behavior and
willingness to accept help in changing.
Possible risks to the child must be weighed against the potential
psychological harm of depriving a child of contact with a parent. At all times in negotiating a settlement, the
law guardian should focus the parties on the needs, interests and wishes of the
child.
The parties and/or their counsel may agree to a
schedule of visitation that “settles the case” and meets the needs of the
parties but not necessarily those of the child.
For example, a schedule in which a child constantly transfers back and
forth between two homes every few days may appear “fair” to the parents but
leave a child confused, angry and without a sense of permanence and
stability. In addition, an agreement
which calls for a very young child to spend a long period of time (such as a
month) apart from the custodial parent can result in profound feelings of
abandonment and long term trauma.
Shorter but more frequent visitation periods should be arranged in such
cases. It is important that the law
guardian ensure that the needs of the child are foremost in spite of pressures
to resolve the case.
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