Law Guardian Practice in Custody and Visitation
Proceedings
by
Carol Sherman and Barbara H. Dildine
(The Children's
EXCERPTS
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B. Interviewing
Diligent law guardians spend a great deal of time
conducting personal interviews of clients, parents and other litigants involved
in their cases. The significant history
of a case may date back to the child’s birth or even earlier. In custody/visitation proceedings, litigants
are often extremely distraught, angry or vengeful. They cannot separate their anger toward the
opposing party from issues pertaining to the child’s welfare. Almost always, each party’s account is widely
disparate from that of the opposing party and even a skilled and experienced
law guardian may face a significant challenge in culling vital and reliable
information from such an interview.
The litigants are often emotional and may be
disorganized, illogical, evasive and/or untruthful during the interview,
thereby protracting the process of eliciting information. Extensive histories of the parties’
relationship with each other and the child must be gathered. Among the many topics such interviews should
cover are details of the child-living situation, parenting functions and how
they are fulfilled, school and day care information, the parents’ work
schedules, any special needs the child has and how they are fulfilled, any
medical or mental health treatment of the parents and/or the child, and any
current or past substance abuse and/or domestic violence history. In cases where domestic violence is alleged,
information must be gleaned in a sensitive and careful manner. The victim is often embarrassed and afraid to
divulge the full history, including prior incidents. She may, in fact, deny the true extent of the
domestic violence.
Law guardians should interview every client who is
verbal and observe all non-verbal clients with respect to their developmental
stages and interactions with their caretakers.
Above all, the law guardian must make the child feel comfortable and
gain his or her trust. Many children
have limited attention spans and quickly become distracted or exhausted by the
interview. A series of interviews may be
necessary to elicit all the pertinent information.
To fulfill her duties to her client under the
Standards, the Law Guardian is obliged to meet with the child (often on several
occasions as the case progresses); describe the nature of the proceedings, the
court process and the progress of the case to the child; explain the
attorney/client privilege in understandable terms; advise the child and provide
guidance; discuss each substantive order and its consequences; develop a
position and strategy concerning every relevant aspect of the proceedings;
prepare the child for an in camera interview, if necessary; and
endeavor to minimize any negative impact upon the child as a result of the
proceedings (Standards A-2, A-3, B-2, B-4).
During the course of the proceedings, as circumstances
evolve and time elapses, it is often necessary to interview the child and the
litigants several times and to have each party accompany the child to the law
guardian’s office so that a full range of parent/child observations can be
conducted. Moreover, because cases often
involve allegations of abusive or neglectful behavior as well as domestic
violence, and parties often allege incidents of inappropriate behavior by a
parent during the course of visitation, appointments must be made to see
children on an ongoing and emergency basis.
Interviews with young children must often be combined
with play and techniques other than a straightforward question-and-answer
format must be utilized. Children often
reveal information in indirect ways and therefore questions about their lives
with their parents and caretakers and their relationships with those
significant to them must be done in a gentle, non-threatening and sometimes
“roundabout” way. The law guardian must
always be aware of the child’s verbal skills, behavior abnormalities and possible
developmental delays and social work assistance may be necessary to glean
information from certain children and/or refer these children for appropriate
services.
In the custody/visitation context, a skilled
interviewer must always be alert to any signs that a child might have been coached
or prepared about what to say or what not to say. Even without direct pressure, the child’s
viewpoint might be unduly influenced by parental behavior or by statements the
child has overheard. Thus the law
guardian must be adept at gaining a true picture of the child’s prior
experiences with each parent and ascertaining the child’s genuine wishes or
feelings. The child might exhibit
substantial fear of a non-custodial parent which has been engendered by the
negative attitude of the custodial parent and not by the child’s own
experiences. While the child’s fears may
not be based on his/her own experiences with the parent, they may nonetheless
exert a profound grip on the child’s emotions.
In such cases, therapy for the child is generally recommended. However, this approach may be frustrated since
the custodial parent frequently does not even acknowledge having negatively
influenced the child and there is little incentive to comply with therapy. For children who have been truly “poisoned”
against a non-custodial parent without justification, even a lengthy course of
therapy or supervised visitation may not improve the relationship.
Because some children appear to change their positions
based upon which parent has accompanied them to the law guardian’s office, it
is often advisable to have each parent bring the child separately. Sometimes the child’s position changes and
evolves as events develop in the case.
For example, some children who have little or no relationship with a
long-absent parent may begin to develop a bond during the course of
visits. Another frequent scenario
involves older children who have fled or been removed from the home of their
long-time custodian and transferred to the other parent following an incident
of corporal punishment or a serious quarrel.
Although some of those children are happy and secure in their new
environments, others subsequently seek to return to the home most familiar to
them. Because circumstances of custody
and visitation often change as the case unfolds, the law guardian cannot
appropriately represent her client without multiple interviews over a period of
time.
C.
Investigation
The law guardian is responsible for
conducting a thorough investigation on behalf of her client, securing all
relevant documents, and gathering information from collateral sources.
·
Contacting the
child’s school or daycare program, speaking with the teacher, child care
provider or guidance counselor and obtaining all relevant records and
information concerning the child’s functioning in that setting;
·
Contacting the
child’s or the parent’s therapist, counselor and/or doctor to obtain medical,
mental health and treatment records;
·
Contacting drug
or alcohol rehabilitation programs in which the parent has participated, speaking
with the counselor and obtaining all records, including recent urine screens;
·
Speaking with
relatives, neighbors, employers and others who have pertinent information about
the family and its problems;
·
Contacting ACS to
ascertain if the family has prior or current involvement with that agency, to
obtain past records and information about the family, to provide information
relevant to an assessment of possible abuse or neglect and to monitor
investigations of abuse/neglect allegations and discuss ACS’s
recommendations;
·
Making home
visits to assess the physical environment in terms of safety and the
suitability of the other people who live in the home;
·
Referral to a
forensic psychologist or psychiatrist for an evaluation and recommendation as
to custody and visitation.
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F. Trial Preparation and
Litigation
In cases that are not readily settled, forensic
examinations of the parties and children may be ordered as a means of assisting
the court in resolving the dispute. The
law guardian may arrange for the services of a mental health expert, prepare
the appropriate order for the judge’s signature, send relevant documents and
contact information on all parties to the expert, monitor the progress of the
preparation of the report, and serve as an intermediary for the expert in the
event of problems or questions.
In the event of trial, the law guardian assesses the
client’s needs and wishes, counsels her client, develops an appropriate
strategy, prepares witnesses to testify and prepares cross-examination of
others, presents evidence, conducts negotiations with other counsel and makes
appropriate objections and arguments, and initiates and responds to any
motions. At the conclusion of trial, an oral or sometimes written summation is
delivered by the law guardian, which requires organizing a vast body of
evidence into coherent and persuasive legal arguments.
If a case goes to trial, the
evidence upon which any final orders are based consists of testimony of the
parties and any witnesses called on their behalf; any records, reports or other
documentary evidence accepted as exhibits; in camera testimony of
the child, if any; and testimony of witnesses called by the law guardian. In delivering or preparing a written
summation, the Law Guardian, like other counsel, is limited to the evidence
adduced at trial.
Further, the Law Guardian should ensure that any
written order conforms to the court’s oral rulings and statutorily required findings, should monitor implementation of the court’s
orders and should explain to the child in comprehensible terms the court’s
determination and its consequences. The
Law Guardian should explain the right of appeal to the child and, in the event
thereof, the Law Guardian should continue representation, seek or oppose
temporary orders to protect the child’s interests, initiate (or, alternatively)
participate in any appeal filed by another party and explain the result of any
appellate decision to the child, file any post-dispositional motions necessary
to protect the child’s interests and continue to represent the child in the
event of any subsequent proceeding such as a modification, violation or
enforcement action (Standards D-1, D-2, D-3, D-4).
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