Law Guardian Practice in Custody and Visitation Proceedings




Carol Sherman and Barbara H. Dildine (The Children's Law Center)






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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 support their children.  The problem of providing the perpetrators with services is particularly challenging since few resources are available, batterers are often reluctant to participate, and no studies have established the long-term efficacy of such programs.


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 support it with the results of his or her investigation, any relevant documentary sources and prior court history.  Interim or temporary orders are issued in virtually every custody and visitation case.  Such orders are necessary for several purposes:


·        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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Last updated January 13, 2005

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