Who Represents Your Child?

By Attorney Gregg Herman
July 1, 2003

When there is a significant dispute over children, in most jurisdictions the court will appoint a representative for the child. The title and role of this representative varies from state to state. In some states, the attorney is called a Guardian ad Litem (GAL), in others, he or she is called a lawyer for the child. Some states appoint two layers: one lawyer to serve as GAL and another as a lawyer for the child.

The attorney’s title is really unimportant, what is important is the role being performed by the lawyer. If you are in doubt, ask your attorney which role such a lawyer plays in your particular state.

Following are explanations of the various roles such lawyers play in representing children in divorce cases.

Lawyer for Best Interests

Generally, when the lawyer is called Guardian ad Litem, he or she represents the best interests of the child. (See Best Interests fo the Child box on page 14.) Unlike an attorney who represents the child, the GAL may conclude that the best interests of the child are different from what the child wants, or that the child is too young or immature to express a preference. Thus the GAL may focus on what is best for the child, not what the child may want.

The process for choosing a GAL varies from state to state and sometimes even from one county to another within a state. Some jurisdictions have GALs appointed from a list of qualified and willing lawyers. In others, the parties’ lawyers may nominate a lawyer to serve as GAL. If you don’t understand how it works in your community, ask your lawyer how the GAL will be appointed and whether you can have any voice in the selection.

Many states require that the GAL have received special training in performing this role. Sometimes this training focuses how to interview a child and behavioral development of a child. Such training may also include cases involving domestic abuse and substance abuse.

The GAL role entails two components. First, the lawyer must conduct an investigation to determine the best interests of the child. Second, the lawyer advocates for the best interests of the child.

The Investigatory Role

The investigation phase is by far the more difficult of the two roles. To a large extent, the lawyer is doing social work or psychology, which is not a part of the typical lawyer’s training. In many jurisdictions, counties have social workers to help with or conduct the investigation. There are even a few jurisdictions in which a team, consisting of a social worker and a psychologist, works with the GAL to perform this investigation.

In many jurisdictions, however, the GAL alone. This investigation may take various forms. The GAL will want to meet with both parents. Depending on the age of the child, the GAL will probably want to meet with the child. Some GALs do home visits, but usually only if the family’s living conditions or home environment is an issue. Most GALs will want to talk to collateral sources, such as teachers, mental health therapists, day-care providers, neighbors, relatives and anyone else with important information.

The extent of the investigation depends on the facts of each individual case. For example, meeting with an infant serves little purpose other than “laying eyes on the child”. On the other hand, adolescents may require several meetings before the GAL earns their trust and can secure useful information. If the child may have been abused or traumatized by the divorce, the GAL may conduct an interview with the assistance of a psychologist who is specially trained in talking with children.

As stated earlier, the GAL does not represent the child, but rather the child’s best interests. This means that the GAL may choose to not ask a child his or her preference. This decision may be on the age of the child or the behavior of the parents who appear to be competing for the child’s affections. Even where the child expresses a preference, the GAL may conclude that the child’s preference is different from the child’s best interests. Again when this happens, the GAL will advocate for the child’s best interests, not the child’s preference.

The Advocacy Role

Once the GAL has an opinion as to best interests of the child, he or she will advocate that position. This advocacy can take several forms. In many jurisdictions, the GAL will prepare a written report which includes a recommendation. Sometimes the GAL will give an oral report with a recommendation. Such recommendation typically includes legal custody and where the child will reside. Depending on the jurisdiction, the GAL also may make a recommendation on any other issue affecting the child, including child support and other matters. Usually, the parties accept the GAL’s recommendation, and the case is settled. However, either party can reject the recommendation and take the case to trial.

The GAL is not the judge, but merely one of the lawyers advocating a position. The court is free to disregard the GAL’s recommendation, just as the court can disregard the request of an attorney for either parent. However, the court is more likely than not to accept the GAL’s recommendation as it comes from a neutral viewpoint.

If the case goes to trial, the GAL does not testify as a witness and cannot be cross-examined. Rather, the GAL will serve as a lawyer arguing for what he or she believes is in the best interests of the children. The GAL can cross-examine the witnesses called by the parents and even call witnesses of his or her own. At the end of the trial, the GAL’s recommendation has to be supported by evidence presented at trial.

Child’s Lawyer

The lawyer for the child differs from the GAL in that there is no investigation into the best interests of the child. Rather, the lawyer for the child will meet with the child and ascertain the child’s wishes. If lawyer believes that the child’s wishes are inappropriate for any reason, the lawyer can work with the child to modify his or her wishes to be more appropriate. However, the primary role of the lawyer is to advocate for the child’s wishes.

Like the GAL, the child’s lawyer will appear at all court hearings and be allowed to call witnesses and cross-examine other parties’ the witnesses. Also, does not have to follow the recommendation of the lawyer for the child, only to consider it just as the court considers the position of the parents’ lawyers.

The primary difference between the role of the child’s lawyer and of the GAL is in cases where the child’s wishes are not the same as the child’s best interests. Whereas the GAL can recommend a position contrary to the child’s wishes, a lawyer for the child exclusively advocates the wishes of the child. In some states, both GAL and attorney for the child are present at trial, each advocating their position.

Although many parents like the idea of having a lawyer represent their child, problems can surface with this role. For one, many children do not want express a preference. As one child explained to me: “If I tell you that I want to live with Dad, I’ll feel guilty every time I see Mom and if I tell you that I want to live with Mom, I’ll feel guilty every time I see Dad. I didn’t cause this problem, so I don’t know why I have to be the one who feels guilty.”

Second, children’s wishes can be influenced. For younger children, toys and presents can be given if the parents think the child’s wishes will be given weight. For older children, privileges or lack of discipline may be persuasive. In any cases, placing the child in the middle of a custody or placement battle is never as good idea.

On the other hand, especially in a case involving older teenagers, giving children a say in their post-divorce life can be positive. After all, a 16 year old with his or her own car is basically a free agent. Forcing such a child on a parent does little good for the child or the parent. The lawyer for the child can assure that the voice and wishes of the child are heard by the court, but a judge will make the final decision.

FAQs

Following are some common questions and ansers about lawyers representing children or their best interests are.

Who pays the lawyer?

As with everything else, this can vary from state to state, but in most jurisdictions, the parents split the costs. Sometimes costs are allocated according to ability to pay or for other reasons, especially if there is a disparity in the parents’ incomes or if one party has unreasonably caused the fees to increase.

How does the lawyer differ from the expert witness?

Some custody cases involve an expert, such as a court custody evaluator, a social worker or a psychologist. If there is an expert witness, his or her assignment will be to present evidence to the court through testimony. As stated above, lawyers, whether for the child or for a parent, do not testify. Rather, the lawyer for the child can call an expert as a witness or cross-examine the expert if the expert testifies.

How do my child’s wishes get heard by the court?

Most courts do not want children coming to court as the experience may harm them. In some states, the GAL or the lawyer for the child can tell the court the wishes of the child. In other states, the GAL may hire an expert, such as a psychologist, to tell the court the wishes of the child. Of course, there may be cases where the child’s wishes should not be solicited, especially where the child is young or does not want to express a preference.

Can I ask the court to change lawyers for my child?

You can ask, but since the court appointed the lawyer, the only legal basis for removal is a violation of the attorneys’ rules of ethics in your area. Being dissatisfied with the result is not a basis for removal.

Can I sue the lawyer for malpractice?

In most jurisdictions, GALs and lawyers for the child are immune from malpractice for acts performed within the scope of their duties.

How Can I Best Get a Favorable Result?

Listening to your own lawyer and understanding the role of the child’s representative is critical. In addition, consider the following:

Conclusion

In most states, when custody or placement of children is at issue, the court will appoint a lawyer to assist the court. Sometimes, the lawyer’s job is to ascertain and advocate for the best interests of the child. Other times, the lawyer’s job is to represent the wishes of the child. Some states provide for different lawyers to perform these roles. It is important that, as a parent, you understand the role to be played by your child’s lawyer what that role means in your case.

This article originally appeared in the Family Advocate.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.