Representing children in custody and visitation proceedings: Do children’s lawyers really protect them?

Many people who write us have children who have their own attorneys because in difficult cases the court assigns and pays for them. We have heard many stories now and sadly it seems unusual that parents say these attorneys have helped protect their children.

It’s nice to know that the legal profession is also concerned that children receive ethical and competent representation. There is actually an American Academy of Matrimonial Lawyers (AAML) that developed in 1995 Standards for Attorneys and Guardians ad Litem in Custody or Visitation Proceedings. These standards have recently been revised and there is considerable debate about just what the role of children’s attorneys should be.

In 2003, the American Bar Association developed its own standards, and in 2006, the Uniform Law Commission (ULC) (formerly the National Conference of Commissioners on Uniform State Laws) released a draft of its Model Act regarding children’s attorneys.

The heart of the debate is whether it is ethical for an attorney to formulate his/her own opinion about what would be best then argue for that opinion before the court.

In an important article, The AAML’s revised standards for representing children in custody and visitation proceedings: the reporter’s perspective, Martin Guggenheim, (Fiorello LaGuardia Professor of Clinical Law, New York University School of Law), argues that children’s attorneys should not be allowed to advocate for their own personal opinions. He states:

It is one thing to want to hear from a neutral investigator who has spoken with the child in an extended way. It is another entirely to empower this investigator to try to ensure that the case comes out the way the investigator wants. The one adds to the case the findings of the investigator but leaves the case in the hands of the court and the adult parties to debate how much the investigator’s views and opinions ought to matter. The other contaminates the proceeding by adding a forceful and skilled advocate who is now advocating for the outcome s/he has selected. This is not only dangerous; it is unnecessary.

Professor Guggeinheim argues that the court needs neutral trained experts that can assess families, report to the court and be subject to cross examination. A layers job is to advocate for what his client wants, Guggeinheim concludes “I hope others in the field of custody and visitation disputes who are interested in improving practice will build off of the (AAML’s) Standards by supporting efforts to limit sharply the use of the term “children’s attorney.” If we could agree to call someone a child’s lawyer only when we expect him or her to advocate for the objectives sought by the child, we can then work on the rest of the issues plaguing the field.”

The problem with lawyers formulating their own opinions and arguing for them, is that they are subject to being deceived by the sociopath and may not even know that psychopathic personality traits are something they should watch out for. I agree with Professor Guggeinheim in that allowing these lawyers to only represent the child’s wishes prevents them from having undue influence over the outcome.

Recently someone told me about a Guardian ad Litem (GAL) who tried to convince a child to see the psychopath parent saying “children are better off when they have relationships with their parents.” Thankfully the child now a tween is wise enough to understand that this dictum does not always apply.

In hearing these stories in the last 2 weeks I came to a realization. There has really been a great deal of research done regarding what factors help shape development in a positive way. It is only natural that clinicians, academics and others would want the family courts to utilize this information to help children. The problem is that clinicians are trained to understand and interpret the data that comes from these kinds of studies. They are also trained in how to apply that data to individual cases.

For example an oncologist reads about treatments for cancer. He knows that these treatments do not work 100% of the time. He also knows that there are certain characteristics of tumors that increase the likelihood they will respond. He then looks for these characteristics in individual patients and can predict how likely it is the patient will have the outcome suggested by clinical research. Clinicians have a natural understanding of percentages and variability in people.

The legal profession has an opposite mandate. Lawyers and judges ignore individual differences and try to treat everyone the same, equal justice under the law. Therefore, I conclude that it is impossible for a lawyer or judge without specialized training to understand how to apply clinical studies to a legal setting. We have to do a better job in the process of going from study to practice in the courtroom.

Please comment on your GAL experience in the comment section.

Addendum: Thanks to everyone who has written in response to this issue. I am working on getting back to you all! Everyone has very important insights to share.