Law Guardian Practice in Custody and Visitation Proceedings
Carol Sherman and Barbara H. Dildine
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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.
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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