GUARDIANS AD LITEM IN PRIVATE CUSTODY LITIGATION: THE CASE FOR ABOLITIO)N

Loyola Journal of Public Interest Law
Spring 2002
Article
*106 GUARDIANS AD LITEM IN PRIVATE CUSTODY LITIGATION: THE CASE FOR
ABOLITION
Richard Ducote [FNa1] [FNaa1]
Copyright © 2002 Loyola Journal of Public Interest Law; Richard Ducote
I. Introduction
On July 17, 2000, the San Francisco Daily Journal published an editorial written by then sixteen-year-old Alanna
Krause, an honor student and the daughter of a prominent and wealthy California attorney. [FN1] The essay
poignantly brought a very rarely seen ’consumer’s’ perspective to the issue of guardians ad litem in private custody
cases. She began her articulate discussion with accurate observations:
*107 Hundreds of years of legal history have lead the United States to implement a system that ensures that every party
in a legal proceeding gets a voice. We rest assured that, unlike in other nations, we cannot be incarcerated, so well
thought out: God Bless America.
But there is a forgotten minority that is not afforded those basic rights. They are not criminals or foreign aliens. In
contrast, they are a group we hold dear- one innocent and well meaning, with no hidden agendas or twisted motiveschildren.
Instead of being actually represented, children get their ’best interests’ represented by adults. We children have no
choice and no recourse when those adults have their own agendas. A case in point? Mine. [FN2]
Ms. Krause explained that during her parents’ nine year custody case in Marin County, California, she was forced to
live against her will with her father, who she described as ’an abuser’ against whom she herself filed over nine
reports with the county child protection agency and the local police. [FN3] According to Ms. Krause, life with her
father was ’Hell,’ as he was a substance abuser who violently mistreated her and eventually intimidated her mother
away from the expensive and frustrating litigation. [FN4] Of the attorney appointed to represent her interests, [FN5]
the equivalent of her guardian ad litem in other states, Ms. Krause complained:
The lawyer appointed to represent my ’best interests’ . . . *108 spent her allotted time with me parroting my father’s
words, attempting to convince me that I really wanted to live with him. She ignored my reports of abuse. . . .
I wrote the judge letters, called her office and did everything I could to make myself heard. She ignored my pleas. I had
no rights. I couldn’t replace my lawyer with one who would speak for me nor could I speak for myself in court. I
couldn’t cross-examine the court evaluators or therapists and their claims were thus untouchable. I felt like I was
witnessing the proceedings from the wrong side of soundproof glass. [FN6]
After she eventually ran away from her father’s home at age thirteen, Ms. Krause was taken under the jurisdiction of
the Los Angeles County Juvenile Court, where she was an actual party, unlike in the private custody case in Marin
County. [FN7] Following new investigations there she was returned to her mother’s custody. [FN8] Her editorial
plea wisely explains the context of this article:
The practice of trying to ascertain what is in a child’s best interest exists because minors supposedly cannot speak
for themselves. Yet, at 11, I could speak for myself. I had a mind and set of opinions, but no one seemed to care.
The judge denied my right to legal representation, especially when the court-appointed lawyer wouldn’t speak the
truth. Granted there is no guarantee that hearing me would have inspired the judge to untwist her motives and
unclench her hold on personal allegiances [FN9] and biases, but who knows? At least is would have been in the
court record. [FN10]
Of course, Alanna Krause’s case alone does not mandate the abolishment of guardians ad litem in private custody
cases. However, the inherent systemic problems manifested in her case, *109 clearly representative of those
pervasive in the nationwide use of such guardians ad litem, do establish the convincing argument that the role of
guardian ad litem (GAL) must be abolished in private custody cases, i.e. litigation between parents and nongovernmental
parties. [FN11] This article examines the purported historical justification for the use of GALs, the
plethora of criticism nationwide concerning their involvement, their poorly defined role, their particular failures in
cases of child abuse and domestic violence, their unaccountability, their unjustified cost, and alternatives to their
use.
II. History And Background
Most jurisdictions by statute have now provided for either mandatory or discretionary appointment of some type of
legal representative for children in custody cases, with guardians ad litem who may or may not be attorneys filling
the shoes in the majority of those. [FN12] The seminal case of In re Gault [FN13] in 1967, *110 recognizing a
juvenile’s constitutional right to counsel in a delinquency proceeding, generally began the push for children’s
attorneys. Although courts always had inherent power to make such appointments, [FN14] Wisconsin enacted the
first statute requiring GALs in custody disputes in 1971 at the strong urging of its Supreme Court. [FN15] In 1972,
the American Bar Association Family Law Section drafted a proposed amendment to the Uniform Marriage and
Divorce Act requiring an attorney for every child in a contested custody proceeding. [FN16] Congress enacted the
Child Abuse and Prevention and Treatment Act in 1974, and therein required states to give children in juvenile court
dependency cases GALs. [FN17] In 1979, New Hampshire became the second state ordering the appointment of
GALs in custody cases. [FN18] Now, it is estimated that more than 1,100 GALs are appointed weekly in the United
States in custody cases. [FN19]
The flawed rationale for appointing these GALs in custody cases is that all parents, who are presumed competent to
raise *111 their children and beyond the state’s heavy hand prior to the commencement of the divorce case, are
somehow automatically transformed into mere combatants inherently blind to their children’s needs, and whose
offspring now need the wisdom and control of some typically young lawyer, needing the fee, to avoid falling into
the vortex of the litigation.[FN20]
As shown here, the road to Hell is indeed paved with good intentions and detours through the family courts.
III. First, Let’s Decommision All Of The GALs
Young Alanna Krause is not alone in her concern for the realities of the GAL system. A July 20, 2001, news story
echoed the apprehension:
There are no laws governing guardians ad litem, yet the legal go-betweens continue to make decisions in South
Carolina’s courtrooms that affect children throughout the state.
Often those decisions are to the detriment of the children, according to a task force of approximately 40 people who
gathered Thursday night in Aiken County to discuss a domestic court reform movement . . .
Cases involving divorce, child custody and child support are handled by . . . guardians ad litem- who must be paid for
their services. No laws or office governs them, and no training course is required . . .
t is the guardian ad litem that has parents and grandparents concerned.
Many of the parents and grandparents at the meeting complained that paid guardians ad litem showed no concern for
the cases they handled and made poor decisions that were not in the children’s best interests. [FN21]
State oversight committees have formed in response to such expressions of public concerns.
*112 On June 28, 2001, Chief Justice Thomas Moyer of the Ohio Supreme Court appointed a thirteen member task
force to develop statewide standards for GALs, including qualifications, fees, training, and scope of responsibilities.
[FN22] The Wisconsin Joint Legislative Council began addressing the problem in a special committee on guardians
ad litem in 2000. At the September 13, 2000 Council meeting, several important problems were noted. [FN23] If the
GALs were to be paid by the parties, they would only accept cases with wealthy parents, since such cases were
bankrupting the parent or parents. [FN24] Also, GALs were often described as biased, untrained, and free to express
a child’s wishes without being subject to cross-examination. [FN25]
Minnesota’s Office of the Legislative Auditor, Program Evaluation Division, on February 28, 1995, published a
report on that state’s guardian ad litem program. [FN26] The findings were consistent with the experiences in other
states:
Many concerns have been raised about the use of guardians ad litem. Most complaints have centered on guardian
actions in family court cases, primarily in contested divorce actions. Complaints have focused on guardian bias, lack of
oversight and accountability, inadequate training, and inappropriate communications between guardians and judges.
Parents have also complained that there is no relief if they have a problem with a guardian.
* * *
[T]he guardians are not effective. Judges differ in how they use guardians ad litem. In some cases, guardians simply
gather information and present recommendations to the court. In other cases, guardians may act as custody evaluators,
or visitation expediters. [FN27] Judges, court *113 administrators, and guardians do not always agree on what
constitutes the guardians’ responsibilities. Judges also differ in their expectations of guardians for communicating and
reporting. People told us the multiplicity of the guardian roles can be confusing, especially to parents who may not
always understand why guardians were appointed. [FN28]
The Minnesota report recommended sweeping changes in role definition, training, caseload size, supervision, and
accountability. [FN29] Nonetheless, Minnesota courts remain unconvinced as recently as December 18, 2001. In In
re Marriage of Smith, the trial court appointed a GAL to conduct a ’preliminary investigation into the appropriate
visitation arrangements’ with the father after the mother was awarded temporary custody. [FN30] Unsatisfied with
such a limited role, the GAL wrote a full blown ’custody report’ recommending custody to the father and issued it
only six days before trial. [FN31] However, a study by the county social services department found the mother to be
the better custodian. Although a statute [FN32] defines the GAL’s duties broadly, the specific order appointing the
GAL in this case under the controlling court rules limited her role to the visitation question. [FN33]
The appellate court was not willing to read the relevant statute to restrict the GAL’s ’traditional role’ and held that
nothing in the statute precludes a ’guardian from ’unilaterally choosing to investigate all the circumstances of a case
and reporting to the court.’’ [FN34] The court’s justification for affirming the trial court’s award to the father
illustrates two common aspects of GAL cases. First, the opinion notes that the trial court *114 gave ’considerable
weight to the guardian ad litem’s report.’ [FN35] However, there is no rationalization for the value ascribed to the
guardian’s position. Next, the court found that the GAL’s report ’mirrored the evidence at trial.’ [FN36] The interplay
between ’evidence’ and the ’GAL report’ is circular. If the evidence supports the decision below, why bother with the
GAL’s ideas about the situation? Why have a GAL? Lacking is any admission of the unfairness and due process
problems caused by the GAL’s actions. As frequently happens, the GAL compromised and confounded the orderly
fact-finding judicial process.
The Massachusetts Senate Committee on Post Audit and Oversight published a report in March 2001, essentially
condemning the GAL system. [FN37] Finding system-wide deficiencies in guidelines, standards, training, role
definition, accountability, and investigations, the report found that GALs frequently and actively cause children to
be left unprotected from documented physical abuse, sexual molestation, and domestic violence. [FN38] In March
1999, the National Council of Juvenile and Family Court Judges, in cooperation with the Violence Against Women
Office of the United States Department of Justice, convened a task force to identify and discuss the complicated
issues surrounding the overlap between domestic violence and child custody cases. The group’s final report observed
that the current GAL system often works against battered women and their children, and thus recommended that
GALs be prohibited from making recommendations about custody and visitation. [FN39] Decision making should
not be their role, the report emphasized. [FN40] In other words, do not allow GALs to be GALs.
Criticism has been expressed in Washington state as well. One article in the Washington State Bar News cogently
defines the universal dilemma:
While most people have strongly held opinions about GALs, *115 most people admit that they do not have a clear
understanding of what one is. GALs are referred to as ’investigators,’ ’expert witnesses,’ ’lawyers,’ ’lay advocates for the
incompetent child’s best interests,’ ’mediators,’ ’negotiators,’ ’supervisors,’ ’monitors,’ ’friends or advisors to the court, ’
’eyes and ears or arms of the court,’ ’recommenders,’ ’fact finders,’ and ’de facto decision makers.’ Sometimes all are
rolled into one figure. Many of us (lawyers, commissioners, and judges) have sounded as if we were talking in circles
when we tried to explain what a GAL is. [FN41]
Guardians ad litem must be abolished in private custody cases for well- established reasons: [FN42] 1) the role is not
subject to definition in any way consistent with appropriate judicial proceedings; 2) there is no documented benefit
from their use [FN43]; 3) they undermine and compromise fact finding by usurping the role of the judge and
depriving parents of due process; 4) they *116 undermine parental authority and privacy; 5) the costs and fees
resulting from their use ultimately deprives parents and children of resources that would actually benefit the child; 6)
in child abuse and domestic violence cases, they routinely advocate against the child’s safety and protection and
directly contravene the child’s interests; and, 7) they are unaccountable for their actions.
IV. The Role Of The Guardian Ad Litem: I’ll Know It When I Do It . . . Maybe
It should be sufficiently alarming to a legal system cast with life altering decisions power that the role of the
guardian ad litem, one of its sacred cows, is apparently more elusive than is the definition of ’best interest’. Yet, there
is something so appealing for altruistic attorneys who want to ’help children’ that they will wade into the slough
despite the known conflicts and confusions, and the unknown dangers. A recent law review student note could not
put the allure better:
Representing a child whose parents are in the midst of an acrimonious divorce litigation is always a daunting task for
an attorney. Add to the mix a heated custody dispute, confusion over whether you are supposed to advocate for your
client’s wishes or what you think are her best interests, and a client who is unable to articulate particular reasons for
wanting to live with one parent over the other, and your initial response is probably to head for the nearest exit. But, as
the sole advocate for this child whose family is collapsing around her, you will want to ensure that her voice is heard,
that her interests are protected, and whatever the outcome, her welfare was adequately taken into account. [FN44]
What about facts? What about evidence? How can the vague *117 and ambiguous role be so quickly overlooked?
What qualifies this attorney to make decisions for this child? Why should it matter ’what you think are her best
interests?’ On what basis should the judge listen to you and your ’thoughts?’ How can it be assumed that your
thoughts ensure that her interests are protected and her welfare is adequately taken into account? Is it not obvious
that the uncertainty of the role and your thoughts might actually result in the child’s voice being silenced? Should
you not be extremely frightened that the judge might listen to you simply because you are cloaked in the mighty
cape of the GAL? The student author of this cited note at first glance agrees that these are important questions:
One objection to the lawyer as the child representative is that his role in custody proceedings is superfluous. Indeed, the
lawyer serves no function beyond that which the parents’ lawyers or family court judges already provide. This view is
untenable in practice however, as the judge’s considerable caseload and overburdened calendar require that she resolve
her cases quickly, leaving little time for careful consideration of all relevant facts and concerns. And to force the
parents’ lawyers to consider not only the wishes of their clients, but also the needs and interests of their clients’
children, would immerse them into a morass of conflicting loyalties that may prevent them from providing full and
adequate representation to any of the parties involved. [FN45]
However, this analysis is flawed in several ways. First, it would be more consistent with the role of the court, given
the goal of improved decision making, to lighten the judicial caseload by adding more judges than to punt the job to
an unaccountable attorney who ’thinks’ something is in the best interest for this particular child. Next, there is
absolutely no basis for the presumption that neither parent in a custody litigation is advocating for the child’s best
interest. Nature has indeed arranged it so that most parents do, in fact, have more invested in the child’s welfare than
the guardian ad litem du jour.
In the most ambitious attempt yet to grapple with the plethora of flaws inherent in using guardians ad litem in
private custody suits, the American Bar Association’s Family Law Section seems ready to concede:
*118 Unfortunately, few jurisdictions currently have clear standards to tell parents and lawyers when or why an
independent representative for a child should be appointed or precisely what the representative should do. All too often,
appointments are made without necessary guidance to ensure that the representative’s duties are defined and fulfilled
satisfactorily.
Partly because of this lack of clarity and definition, too little has been done to make the public, litigants, domestic
relations attorneys, the judiciary, or the representatives themselves understand children’s representatives’ roles, duties
and powers. Judges and representatives have been targets of litigant’s resentments, public criticism, and even pro se
legal actions. Meanwhile, children’s court appointed representatives have struggled with the very real contradiction
between this perceived role as lawyer, protector, investigator, and substitute judge.
* * *
As for the role of Guardian ad litem specifically, these standards do not purport to resolve or eliminate all of the
inherent theoretical and practical contradictions that arise from such appointments nor to provide a complete substitute
code of ethics for them; but, they do impose substantial requirements for qualify control, professionalism, clarity,
certainty, uniformity, and predictability in how individual Guardians ad litem, judges and court systems will act.
[FN46]
The recent judges’ manual published by the American Bar Association in conjunction with the State Justice Institute
professes the importance of appointing attorneys for children in custody cases, but nonetheless advises:
Depending on the individual state statute, a judge may have the discretion to appoint only an attorney, an attorney and a
non-attorney GAL, or an attorney GAL. State statutes usually do not clearly define the role of the child’s *119
representative. Many indicate that this individual will represent the child’s ’interests’ and do not clarify whether these
’interests’ encompass the child’s preference, his or her best interest, or both. [FN47]
It is certainly reasonable to conclude, therefore, that after two decades of experience and experimentation without
substantial progress in solving the most basic problem of role definition, the GAL’s place in custody cases should be
extinguished.
The elusive role issue is not merely a curious topic for academic comment. Unfortunately, most courts believe that
the GAL’s role is crisp, yet refer to it in general and vague platitudes. Worse, though, is that most courts, usually
with statutory encouragement, ascribe to the GAL and his or her opinion a level of competence, validity, wisdom,
credibility, and objectivity richly undeserved. To the contrary, such judicial and legislative fawning is outright
dangerous and fosters an illusion of the child’s protection. The rather bizarre extent to which courts will enshrine the
GAL’s mantle of the ’child’s best interest’ is illustrated in In re Rosa L.C., [FN48] a juvenile court termination of
parental rights case. Wisconsin, unlike most states, allows a jury trial in this situation. [FN49] The father who
permanently lost his parental rights in the case assigned as error the trial court’s introduction of the GAL for the
child to the jury as the individual responsible for representing the best interests of the child. [FN50] Although the
trial judge had admitted on the record that he probably erred in making the statement to the jury, the appellate court
held to the contrary that such an introduction was ’both informative and desirable’ since the characterization
accurately tracked the statute creating GALs. [FN51] A jury hearing a judge *120 pronounce from the bench that
one particular attorney is representing the child’s best interests is likely to give the GAL’s position undue
consideration and importance, as it is unlikely that a jury would want to do anything that is not in the best interest of
the child. The evidence and the facts may become secondary to ’doing right by the child.’ In a criminal context, no
court would sanction an instruction to the jury that the District Attorney’s role is to represent the ’truth’ or that the
defense attorney’s job is to represent the ’defendant’s freedom.’ However, this case is a valid analogy.
It is common for courts to ’clarify’ a general pronouncement of a purportedly concrete role for the GAL with
inherently confusing or contradictory explanations. For example, in Fernando v. Nieswandt, [FN52] a Washington
appellate court believed that it could explain the GAL’s job:
A guardian ad litem is not appointed as an ’expert.’ Rather, she is appointed to investigate the child and family situation
for the court and make recommendations. In effect, she acts as a neutral advisor to the court and, in this sense, is an
expert in the status and dynamics of that family who can offer a common sense impression to the court. [FN53]
One could reasonably argue that this sentence alone is one of the strongest pieces of evidence that no such creature
should be allowed anywhere near a courtroom, where due process, the rules of evidence and facts are supposed to
rule the day.
Another example is more elaborate. In Perez v. Perez, [FN54] the Florida Court of Appeal initially proclaimed that
the ’universally recognized’ function of a guardian ad litem in a custody dispute is to protect the best interests of
children. [FN55] Lest any GAL be still uncertain what she is supposed to do under that ’universally recognized’
mandate, the court elaborated:
Litigation involving custody issues can be particularly acrimonious and, unfortunately, children are particularly *121
vulnerable to the harms commonly associated with hostility and conflict between parents. Guardians ad litem serve an
important role under limited circumstances, by acting as representatives of children and promoting society’s interest in
protecting children from the traumas associated with divorce and custody disputes. [FN56]
However, the court flatly rejected the GAL’s desire to participate in the appeal, because the GAL would then
improperly become an ’advocate.’ [FN57] Despite the fact that the specific Florida statute providing for such GALs
states that he ’shall be a party to any judicial proceeding’, [FN58] the court interpreted that to mean only in the trial
court, invoking ’common sense.’ [FN59]
The Perez court described the GAL as a ’fact investigator’ prohibited from calling or questioning witnesses. [FN60]
Given that the court expected the GALs to be ’representatives of children,’ [FN61] surprisingly, the court was
’disturbed’ that the GAL retained an attorney to represent the GAL ’on behalf of the children.’ [FN62]
Citing the controlling statute, [FN63] the court limited the GAL’s role to ’act as next friend of the child, investigator
or evaluator, not as attorney or advocate.’ [FN64] In a final futile effort to eliminate any and all possible remaining
confusion, the court summarized:
In conclusion, there is no authority for a Guardian, or an attorney purportedly representing a Guardian, to submit
motions or a brief in a child custody appeal. Guardians render an important service to the courts of this state, and we
recognize that the lines separating the functions of an attorney or Guardian and an attorney as advocate, can become
easily blurred. We hope the line has now become more distinct. [FN65] *122 There is more, though. The court in a
footnote then, despite the labored discourse on the absolute impropriety of the GAL’s attempt to file a brief and an
order to ’prohibit further involvement of the Guardian in these appellate proceedings,’ [FN66] allowed the GAL to file
an amicus brief. [FN67]
Not satisfied with the majority’s job of navigating the maze, Judge Sorondo wrote a concurring opinion. [FN68] He
attempted to refine the majority’s demarcation between an attorney/advocate and an attorney/GAL:
In short, the guardian’s role is to discover, analyze, and communicate facts to the judge which will assist the trial court
in the performance of its duty to determine the best interest of children in divorce proceedings. The role of advocate for
the child, the legislature has reserved for counsel, which the court can appoint if it considers appropriate and necessary.
[FN69]
Judge Sorondo was compelled to expand on the majority’s analysis that the GAL could not as a ’non-party’
participate in the appeal by filing a brief, other than an amicus brief, [FN70] by citing a statute which allows the
GAL to file pleadings, but only through counsel. [FN71] His attempt to reconcile the majority’s ’disturbance’ with
the GAL retaining counsel to file a brief in this case [FN72] and that statute did not lay, by any means, all debate to
rest.
Perhaps the most important observation, amid all of the contortive efforts to resolve the great question of the GAL’s
place, is indeed found in the concurrence. The guardian’s position is declared superfluous. [FN73] The GAL agreed
with the father’s position, and of course, as these cases circularly go, the father *123 ’relied heavily on the
recommendation of the guardian. ’ [FN74] Nowhere is there any suggestion that the GAL ’discussed, analyzed, or
communicated to the judge’ any facts which the father or mother could not or did not. Despite all of the analytical
contortions to explain what the GAL could or could not do, the opinion makes no case for the GAL’s necessity or
significance. While the court chided the GAL for increasing the costs of the litigation to the parents by hiring a
separate attorney to represent herself, [FN75] there is no mention of the increased expense created by the GAL’s
mere presence.
Although there is an apparent bright academic distinction between a GAL and an attorney actually representing the
child personally, [FN76] courts still struggle with the difference and the correct response to the varying roles. In
Schult v. Schult, [FN77] the court considered whether an attorney actually representing a child in a private custody
case could advocate a position contrary to that of the child’s GAL. A basic understanding of the difference in the
roles and the fact that there were appointments for each role should point to an obvious affirmative answer. Yet, the
court held that the two positions could diverge because it was in the child’s best interest to allow the two arguments
to be heard. [FN78] The child’s attorney, over the objection of the GAL, was allowed to call witnesses and conduct
direct and cross examination, as attorneys are prone to do. [FN79] The GAL, exhibiting an arrogance unfortunately
common with the job, asserted that the child’s attorney should be limited to asking questions the GAL prepared.
[FN80] The GAL, unlike the child’s attorney, was called as a witness by the mother and testified that the mother
should be granted custody. [FN81] The only other witness supporting the *124 GAL’s position was the mother.
[FN82]
This case is important in several respects, and, unfortunately, represents the obstruction and vexation created by
GALs under the guise of benefiting children. In Schult, the GAL forcefully argued that the child’s attorney
prevented a ’fair trial’ by daring to disagree with her. [FN83] The GAL’s rather absurd legal logic was that the child’s
attorney must actually represent the GAL since she is appointed to decide what is best for the child. [FN84]
Unfortunately, this case depicts a far too common situation where the GAL argues for the child’s placement in an
abusive home. Here, the trial court found that this three year old developmentally delayed boy suffered a broken leg
at the hands of the mother’s fiancé and then conspired with her to cover up the abuse. [FN85] Sole custody of the
child was granted to his grandmother. [FN86] Although this result was that advocated by the child’s attorney, more
importantly that was the disposition mandated by the evidence. The opinion does not discuss the purported factual
basis for the GAL’s posture, though it is not uncommon for such to be non-existent in the ’Kafkaesque ’ world of the
GAL.
The Connecticut Supreme Court’s opinion in Schult falls short in two major respects. First, the court missed an
excellent opportunity to criticize and challenge the actions of this particular GAL under the presented facts, and to
then explore the significance of this situation in the context of the general use of GALs in custody cases. Next, the
court unwittingly perpetuated the problem by allowing the trial court to neuter the possible counter-protection
afforded a child by the appointment of a separate attorney independent of the GAL. In reasoning extremely difficult
to reconcile with due process and the basic function of an attorney in the courtroom, the court held:
[W]e conclude that where a court has appointed both an attorney and a guardian ad litem to represent a child in a
dissolution action, the attorney for the child may advocate a position different from that of the guardian ad litem so
long as the trial court determines that it is in the best interest of *125 the child to permit such dual, conflicting
advocacy. [FN87]
How can any appellate court actually hold that the trial court can throttle simple argument because the expression of
the argument itself is not in the child’s best interest? On what criteria could such a determination ever be made?
Indeed, those are extremely dangerous threats to a legal system in whose hands society’s children are entrusted.
Similar questions have arisen in Texas. In Samara v. Samara, the trial judge appointed both a non-lawyer GAL and
an attorney ad litem for the children. [FN88] On the GAL’s motion, an attorney for the GAL was then appointed.
[FN89] The father was assessed the GAL’s attorneys fees and appealed. [FN90] Although Texas statutes state that
both guardians ad litem and attorneys ad litem are to address respectively the ’best interests of the child’ and the
’interests of the child,’ [FN91] the court found no authority for an attorney to be appointed to represent the GAL.
[FN92] The court’s solution, though, is dizzying:
If [the GAL] needed legal advice to protect the children’s interests, she should have consulted . . . the attorney ad litem.
If dissatisfied with [the attorney ad litem], [the GAL] should have requested a different attorney ad litem or resigned
and requested the judge to appoint an attorney as guardian ad litem. [FN93]
Again, the opinion omits discussion of any possible benefits to be derived from this bumper crop of legal minds, or
how the case may have turned out substantively different without its own mini bar association.
The Wyoming Supreme Court was completely bewildered in explaining the GAL’s role in Clark v. Alexander.
[FN94] In that case, a mother who lost custody of her child to the father appealed *126 assigning as error the
attorney GAL’s authorization for the father to tape record the children’s calls with their mother and the allowance of
the GAL’s testimony. [FN95] The tapes were admitted into evidence through the testimony of the GAL, who
believed that she could give the children’s consent to the taping and thus circumvent the state’s wiretapping statute.
[FN96] In setting out to address the issues presented, the court analysis is steeped in frustration:
The role of the attorney/guardian ad litem during the proceeding is central to the disposition of the case. Mother claims
that because the guardian ad litem actively participated as the children’s attorney, it was improper to allow her to testify
at the modification hearing . . .
. . . However, ’[t]he definition of the precise roles of the attorney and the guardian ad litem is still evolving and not
without difficulty . . .’ In Wyoming, the role of an attorney or guardian ad litem in custody cases is not addressed by
statute, and like many jurisdictions, case law has failed to clearly delineate the parameters incumbent upon
appointment. Moreover, the juxtaposition of the separate roles of attorney and guardian ad litem into one
’attorney/guardian ad litem,’ appears especially problematic. . . Given the lack of clear direction provided to those who
must fulfill this role in Wyoming, and our certainty that the issues in this case will reappear in the future, we speak to
these issues here. In providing guidance to the role of an attorney to represent a child while at the same time acting as a
guardian ad litem, we do not intend to usurp the role of the district court in appointing individuals to act solely as
attorney or as guardian ad litem. It is imperative, however, that the appointee request clarification from the appointing
court if questions regarding the duties arise. [FN97]
The court was correct in bifurcating the attorney/guardian ad litem roles. Yet, the court was still lost in its discussion
of what exactly the GAL is:
Our decision here does not address many areas of chronic *127 confusion in the appointment of a guardian ad litem,
e.g. when an appointment is necessary, the necessary qualifications to serve as guardian ad litem, and the timeliness of
the court’s communication of the specific duties expected by the court. In recognition of the need for clarification and
the lack of uniformity throughout the state, we urge our courts, legislators, professionals and concerned citizens to
undertake a consolidated effort to address the appointment of counsel and guardians ad litem for Wyoming’s children.
[FN98]
The court then embarked on a review of the literature and caselaw nationwide, [FN99] and wondered if the GAL in
Wyoming was ’an investigator, monitor, and champion’ [FN100] for the child; ’an agent or arm of the court’; and/or
an overseer of the progress of the proceedings involving the child. [FN101] The Wyoming enabling statute
presented the court with a particular problem, since it combines the role of attorney for the child with the GAL’s
role, if no separate GAL is appointed. [FN102] After finding intractable and troubling conflicts inherent in the
statutory scheme for GALs, the court ultimately settled on two points which could be articulated into a holding: 1)
the attorney/GAL cannot be a fact witness at a custody hearing so that his credibility is not at issue, but 2) the GAL’s
recommendations can be made in closing arguments. [FN103] The court then ruled that the testimony of the GAL
was improperly admitted into evidence, as were the telephone tapes *128 admitted through the GAL. [FN104] In the
court’s next challenge, the trial court’s ruling had to be reviewed while paring the inadmissible evidence generated
by the GAL from the rest of the trial judge’s reasons for awarding the father custody. Unfortunately, the court’s
analysis leaves the reader with the sense that the GAL has carried the day, despite the ethical and evidentiary lapses
she brought to bear:
What is more difficult to assess is whether the lay opinion testimony of the guardian ad litem on the ultimate issues in
the case was enhanced in the eyes of the district judge because she had served as an advocate for the children’s best
interests. Indeed, the district judge specifically found that the testimony of the guardian ad litem in every instance, was
more credible than that of the Mother. Our review is further complicated by the fact that the tapes conversations,
evidence which the district judge found ’shocking,’ were admitted though this witness . [footnote omitted]
After careful review of the record, and eliminating from consideration the opinions of the guardian ad litem and the
contents of the tape recordings, we find that the record clearly supports the district court’s determination that the best
interests of the children were served by the Father’s continuing custody. [FN105]
The evidence cited by the appellate court to uphold the trial judge’s ruling is relatively lame, compared to the
bombshell impact ascribed to the extracted contributions of the GAL: the mother’s coping problems with the eldest
child, the mother’s ’refusal to credit father’s cooperation in scheduling visitations, ’ the father allowed the children to
contact the mother, the children appeared to be happy with the father. [FN106] However, it is impossible to discern
how much of the mother’s credibility was damaged by the GAL’s opinion of her, since her credibility would factor
into the judge’s findings on these other issues. In effect, it would seem unlikely that any realistic efforts can be made
to un-ring the bell the GAL rang. The end result is that even when the GAL is roped into bounds, she still prevails.
In its careful efforts to resolve the myriad difficulties *129 identified with using GALs, the Wyoming Supreme
Court unwittingly unleashed a new virus into the GAL environment. In Clark, the GAL was cross-examined,
although the appellate court ruled that she should not have been allowed to testify at all. [FN107] Instead of
testimony which puts the GAL’s credibility at issue, the court ruled that the GAL could present her recommendation
in closing argument. [FN108] However, it is a far stronger safeguard to allow GAL testimony and cross examination
than to allow unbridled pontificating at the close. It is extremely naïve to believe that the GAL’s credibility should
not be subjected to rigorous scrutiny, giving the tremendous power she wields in custody cases. While the Clark
court bars the GAL from serving as a fact witness, her role as an un-cross-examined, un-qualified expert witness
appears intact. For this reason, the Court of Appeals of Missouri recently held in Dickerson v. Dickerson that no
such unsworn statements and recommendations from a GAL would be allowed. [FN109] Once again, taking the
Clark opinion at face value, the GAL was superfluous [FN110] because her input was not shown to be necessary.
The South Carolina Court of Appeals tackled the GAL in Shainwald v. Shainwald. [FN111] A mother who lost
custody argued on appeal that the trial court had placed too much weight on the GAL’s written report. [FN112] Due
process appeared under assault early on when the trial judge instructed the GAL, ’ I think it would work best that
you give us your recommendation . . . and then you can follow up with a written report and put it in the record. ’
[FN113] In her written report, the GAL opined in the typical speculative, vague, and fact-poor ’thoughts’ upon which
courts nationwide are eager to rest their decisions: ’I think based on what I know so far, I think the children would be
well placed with their father only because of the issue of access. I think he would *130 guarantee access to the
mother.’ [FN114]
The opinion discusses additional aspects of the GAL’s written report:
In her report, the guardian ad litem found there had been considerable ’difficulty arranging and effecting visitation
between the children and their father because the mother has exercised undue control which has limited the children’s
opportunities for a positive relationship with the father.’ She also found if the mother obtained custody, she might leave
the Charleston area to reside in Spartanburg. This finding was apparently based on the observation the children and
mother spent a great deal of time in Spartanburg. [FN115]
It is especially distressing that such conjecture rises to the level of ’findings,’ which suggests that indeed the GAL is
operating as a de facto judge. This problem was not lost on the appellant mother:
The mother interprets the court’s direction to the guardian ad litem as a statement that there would be no written report.
[FN116] She contends the ’report was inadequately based . . . internally unclear, and makes no real analysis of the
situation.’ The mother also contends the order of the court in its dispositive parts is almost an exact copy of the written
report and depends heavily on the report. She also argues guardians ad litem should be precluded from making custody
recommendations to the courts. [FN117]
Acknowledging the modicum of merit in the mother’s concerns, as is common when courts wish to fix the GAL
problem, more pitfalls are created:
There is a dearth of caselaw in this state regarding the proper role of a guardian ad litem report in a custody case . . .
We recognize the concern of the mother that a family court may give undue weight to the recommendations contained
in the guardian ad litem’s report. However, we do not think such concern should annul the long practice in this state of
*131 permitting guardians ad litem to make written reports to the court as long as the parties’ right to confrontation are
protected. As stated in [a prior decision] this may be accomplished by affording to the parties the right of crossexamination
of the guardian ad litem and all other persons the guardian may have talked to whose testimony formed the
basis of his recommendations. [footnote omitted]
We reject the mother’s somewhat novel argument that guardians ad litem should be precluded altogether from giving
opinions regarding custody. We think much of the criticism of guardians ad litem stems from the failure of the bar to
recognize the proper function of a guardian ad litem. A guardian ad litem is a representative of the court appointed to
assist it in properly protecting the interests of an incompetent person . . .
The requirement that the children have independent legal representation does not in any way suggest that the parents or
the trial court were unmindful of the children’s welfare. Rather, it reflects the conviction that the children are best
served by the presence of a vigorous advocate free to investigate, consult with them at length, marshal evidence, and to
subpoena and cross-examine witnesses. The judge cannot play this role. Properly understood, therefore, the guardian ad
litem does not usurp the judge’s function; he aids it . . . [footnoted omitted]
We hold the extent to which a guardian ad litem is permitted to testify and give an opinion or recommendation in a
child custody case is left to the sound discretion of the trial judge. However, judges should be mindful of the duty of the
guardian ad litem to advocate and fully protect the interests of his ward. Any exercise of discretion by the court which
unreasonably interferes with the performance of that duty amounts to an abuse of discretion. [FN118]
Nonetheless, the decision was affirmed. [FN119] The mother’s argument was discounted because even though the
trial court parroted much of the GAL’s report, the father testified to many of the same issues and the trial judge
relied on findings *132 unmentioned in the GAL’s report. [FN120] In justifying its affirming of the ruling below, the
appellate court did not realize that it illustrated that no guardian ad litem was needed in the first place. If the decision
was based on grounds that the GAL failed to raise and the father provided the same evidence as did the GAL, her
role was completely superfluous. Unfortunately, though, rather than observe this paradox, by leaving to the court’s
discretion the question of permitting the GAL to render ultimate recommendations and by warning the state’s trial
judges to go lightly on the reins, enormous flaws in the system are blessed and encouraged. In the same breath,
while itself falsely equating GAL activity with independent legal representation of the child, the court just cannot
understand why the bar does not comprehend the GAL’s place in these cases. [FN121] It is no surprise that nearly a
decade later, in Shirley v. Shirley, the same court is still bemoaning that the bar simply does not understand what the
judges, but no one else, believe to be so clear- the role of GAL’s in custody cases. [FN122]
The GAL’s written report was the primary issue in Gilbert v. Gilbert, a case that richly demonstrates the abundant
flaws in GAL use, and an alleged hard drinking, child abusing father’s successful manipulation of those defects to
his advantage. [FN123] There, in an earlier hearing on temporary matters, the parents’ attorneys stipulated, for
apparently the sake of expedience over the interests of their clients, that the yet unwritten report could be entered
into evidence. [FN124] At the final trial, the court admitted the finished report over the mother’s objection and,
following the GAL’s recommendation, awarded the ten-year-old son to the father. [FN125] The court reversed and
remanded because the GAL’s report was improperly admitted into evidence. [FN126]
The decision reflects a different, but equally confused, role of the GAL in Vermont ’to minimize the harm suffered
by the child during the breakup of the family rather than to assist the attorney and the child in making choices that
parties must make *133 in our adversarial system.’ [FN127] Nevertheless, the GAL ’shall not testify, unless the
testimony is ’directly probative of the child’s best interest, and no other persons could be employed or subpoenaed to
testify on the same subject matter.’’ [FN128] A potential domino effect is also created, because if the GAL testifies,
the court may appoint a new GAL. [FN129] While describing the GAL’s purpose as presenting a neutral party’s view
of the child’s best interest, the court cited the state’s legal system gender bias study which colored GALs as
prejudiced loose cannons carrying tremendous influence in the judges’ minds. [FN130]
The contrast between the majority and dissenting opinions’ approaches to the GAL is as fine as example of the
rudimentary conflict as is found in the caselaw. The dissent suggested that parents should agree to the submission of
the report before the pen hits the paper, [FN131] and regretted that without those trusty GAL reports, ’the family
court [is left] with nothing to rely on in making custody determinations except the partisan presentation of the
parties, who unfortunately are too often interested in getting their way than fostering their children’s best interests.’
[FN132] Many judges do strongly believe that a mother who asserts that a young child should be in her custody
instead of living with a violent inebriate is only interested in ’winning’ and not in what is best for her child. Evidence
of the veracity of her complaint attracts no interest in those courtrooms, unlike the idolized opinion of the GAL.
Unfortunately, these judicial notions seem incurable and fostered by ’co- dependent’ GALs.
One confused Delaware attorney appointed as a GAL requested an advisory opinion from the Delaware State Bar
Association’s Commission on Professional Ethics as to whether he could act as a GAL and still be an ethical
attorney. [FN133] While *134 recognizing that the role carries ’potential ambiguity’ the committee found that the
attorney could ethically serve as a GAL, because he actually ’serves as counsel for the guardian ad litem. ’ [FN134]
The committee was, however, troubled that the GAL’s role would cause him to violate Rule 3.7 of the Rules of
Professional Responsibility prohibiting an attorney from acting as a witness, so two solutions were tendered.
[FN135] The GAL could withdraw, or the Delaware Supreme Court should take the committee’s recommendation
that Rule 3.7 be amended to exempt GALs.
Much of the criticism aimed at GALs points to inadequate training. In Illinois, however, the training perpetuates the
problem. In October 2000, the Illinois Institute for Continuing Legal Education attempted to mold that state’s
champions for children. [FN136] The good news is that a manual was presented to all participants. The not-so-good
news is the information contained inside:
The GAL does not act as an independent advocate but acts under the control and direction of the court. Once appointed,
the GAL is charged with defending the interest of the minor. . . .Unlike the [attorney for the child], however, the GAL
may testify, present a report to the court concerning what is in the best interest of the child, and offer an in-court
personal opinion not based on the evidence. [FN137]
That the Illinois bench and bar, like those in most states, apparently embrace a juridical player with license to
unabashedly affect the lives of children through ’personal opinion not based on the evidence’ - it merits repeating -
bears potent witness to the catalepsy wrought by GAL adulation.
Fortunately, at least Pennsylvania has seen the light and declared this judicial culture of GAL veneration ’egregious.’
[FN138] In C.W. v. K.A.W., the trial court appointed an ’experienced custody attorney’ to serve as GAL because of
the ’lack of communication’ *135 between the parents and their ’extreme hostility.’ [FN139] In denouncing the
appointment of the GAL and reversing the judgment reflecting the GAL’s position, the appellate court rested on
several important points: 1) even parents bitter toward each other are focused on the child’s best interest in custody
litigation; [FN140] 2) the trial judge essentially abdicated his role to the GAL, which the court deemed a ’gross’
abuse of discretion; [FN141] and 3) the trial judge’s role is to determine the best interests of the child based on the
evidence presented. [FN142] In refreshing logic consistent with the way courts are expected to function,
Pennsylvania has derailed the runaway GAL train.
V. Enablers Ad Litem: Child Abuse and Domestic Violence Cases
One of the great paradoxes in the nation’s family courts is the role of the guardian ad litem in custody cases
involving domestic violence and child abuse. On one hand, the appointment of a GAL in an ordinary situation where
the child is not subject to potential harm from such dangers at worse can simply raise the expenses of the parents,
increase the arbitrariness [FN143] already inherent in deciding the amorphous best interest issues, and compromise
due process. However, in domestic violence and abuse cases, where courts are even more eager to appoint GALs,
[FN144] children are frequently ending up in *136 the custody of the abusers and separated from their protecting
parents. This tragedy does not happen in spite of the GALs, but rather because of the GALs. Professionals across the
country are appalled that the GALs are actively and forcefully advocating for the children whose interest they are
mandated to protect to be placed with violent child abusers and sexual molesters. [FN145]
One of the most perplexing failures in family court custody litigation is the lack of protection and support for
women and children fleeing violent homes, despite the abundant legal and societal demand for abused women to
leave their abusers and protect their children. [FN146] This ’damned if you do, damned if you don’t’ dilemma causes
battered women to risk losing custody in juvenile court for neglect if they stay in the violent home, and to also risk
losing custody in family court if they leave and insist on the child’s protection. The primary reason for this calamity
is the clash between the pervasive statutory emphasis on the parent who will encourage the child’s relationship with
the other parent, and the domestic violence law [FN147] and policy that supports parents who insist on proper
protection and the separation of the abusive parent and the child. A landmark American Psychological Association
report summarizes the situation:
*137 [Child] custody and visitation disputes appear to occur more frequently when there is a history of domestic
violence. Family courts often do not consider the history of violence between the parents in making custody and
visitation decisions. In this context, the non-violent parent may be at a disadvantage, and behavior that would seem
reasonable as a protection from abuse may be misinterpreted as a sign of instability. [FN148]
The custodial preference for the parent who encourages the child’s relationships with the other parent, often referred
to as the ’friendly parent,’ typically trumps the mother and child’s protection despite the fact that such ’friendliness’ is
contraindicated. [FN149]
Since GALs are usually plucked from the family court bar, they bring these same misguided principles to bear on
the cases. Any attempt to claim, despite the abundant proof of the reality of the situation, that a father is dangerous is
simply dumped into *138 the category of ’conflict’ [FN150] - the ultimate anathema in the eyes of the family court
judge. In a study undertaken by the National Council of Juvenile and Family Court Judges, GALs were identified as
a major problem:
Participants [in the study] noted that custody evaluators and guardians ad litem were the professionals least trained
about domestic violence of any actors in the civil justice system . . . . Evaluators and guardians are heavily influenced
by the social and legal policies that facilitate contact with the noncustodial parent with regard to the risks attendant
upon contact or relationship. They, like mediators, are not guided much by law as by their training and predilections
about appropriate post-separation custodial arrangements. Many appear to marginalize domestic violence as a factor
with significant import for abused adults and children in custodial outcomes. [FN151]
Consequently, the question of whether or not brutal domestic violence or heinous child abuse occurred - a fact
subject to proof as any other fact in a civil or custody case - is forgotten, ignored, or completely subjugated to the
overriding concern preoccupying *139 the judge and the GAL: Does Mommy say nice things about Daddy and does
she encourage the relationship between the two? [FN152] The maiming of the fact-finding process by the GALs
circumvents the statutes now found in 48 jurisdictions that either prohibit batterers from obtaining custody or require
courts to consider family violence as a custody factor. [FN153]
Family courts throughout the United States, with the help of guardians ad litem, are likewise placing sexually abused
children with parents who molested them. This outrageous trend is primarily the product of two developments.
[FN154] First, there is widespread - but absolutely false - assumption that a sexual abuse allegation made in the
context of a divorce or custody case is likely to be false. The 1996 American Psychological Association’s Family
Violence Report explains that reports of child abuse and child sexual abuse are commonly discounted when made
during a custody dispute, but that to the contrary ’research shows that such charges are as reliable during custody
disputes as at other times.’ [FN155] One groundbreaking treatise explains the forces bent on disbelieving the child
abuse victim and on punishing the mother:
There even appears to be a danger that some parents, particularly mothers, may automatically be regarded as paranoid,
hysterical, or perverted in their thinking for simply suspecting their ex-husbands of such a thing as child sexual abuse.
It is a reflection of society’s longstanding refusal to acknowledge the widespread existence of incest. For divorcing
mothers, the assumptions made about their motives can serve as an insurmountable barrier to getting *140 help. This
bias may be so strong that their reports to others of what their children have told them can actually jeopardize their own
positions as future custodians of their children. This form of double jeopardy will only serve to reinforce the silence
that already surrounds this problem, and to endanger children further. Very young children are not prone to fantasizing
about molestation and are rarely capable of describing or re- enacting things about which they have no knowledge or
experience.
We must guard against our own unconscious motives for participating in this bias. We must recognize that it is much
easier and more in accordance with our images of the world to regard a mother as crazy or hysterical than to recognize
an otherwise seemingly rational and caring father as capable of the behaviors described. Beyond that, such a view may
serve to reinforce our own denial of what we, like most people, would rather not see. [FN156]
Second, family court judges and guardians ad litem [FN157] often succumb to the dangerous lure of the discredited
and essentially pro- pedophilia [FN158] theory concocted by Richard Gardner [FN159] called *141 ’Parental
Alienation Syndrome’ [FN160] or ’PAS.’ This non- existent ’syndrome’ posits that when children display fear of one
parent, typically the father, report abuse by that parent, and exhibit symptoms of trauma such as sexual abuse, the
real culprit is the child’s mother who ’programmed’ the child into this damaged relationship. The ’treatment of choice’
is to give the ’alienated parent’ - or the true abuser - custody and severely limit the other parent’s contact with the
child. One irony of this so- called ’PAS’ is that the increased existence of valid evidence of true sexual abuse leads
Gardner and his devotees to more fervently diagnose ’PAS.’ Thus, ’PAS’ is the criminal defense attorney’s dream,
since the greater the proof of the crime, the greater the proof of the defense.
A very recent American Bar Association guide for judges warns:
Related to the Friendly Parent Provision is the controversial issue of Parental Alienation Syndrome. Under this theory,
a parent who ’bad mouths’ another parent in front of the child, or ’brain washes’ the child to turn against the other
parent, is considered to be not acting in the child’s best interests. This theory is highly controversial and has been
rejected by many courts as bad science. In domestic violence cases, it can be dangerous. Domestic violence victims,
often for the safety of the children and themselves, take active steps to minimize contact and relationships with the
abuser. To punish them for doing so, by giving favorable custody or visitation *142 treatment to the abuser, it is
counterproductive and can be dangerous. [FN161]
The American Psychological Association’s family violence task force also complains that:
Although there are no data to support the phenomenon called parental alienation syndrome, in which mothers are
blamed for interfering with their children’s attachment to their fathers, the term is still used by some evaluators and
courts to discount children’s fears in hostile and psychologically abusive situations. [FN162]
Thus, when a GAL is poised to represent the ’interests’ of a child who is exhibiting extreme fear of a parent, it is
frequently the GAL’s argument across the nation that the child should be in the custody of that same parent, despite
substantial evidence of abuse warranting the fear, in order to ’treat’ PAS. [FN163]
VI. Rules? We Don’t Need No Stinkin Rules! [FN164]
When GALs go awry, there is little that can be done to hold them accountable. [FN165] As one law review article
explains, the *143 faulty role definition fosters the GALs motivated by personal interests:
Furthermore, some individuals thrive in being in a position of power over others. A guardian ad litem can insert herself
into a family to structure the interactions among the family members, without having any historic, emotional, financial
or physical commitments and responsibility for the consequences. Without the controls and limits which are inherent in
the judicial system and which constrain judges, the guardian ad litem, with or without admirable motives is not
accountable. [FN166]
Some GALs, without any authority to do so, want to determine acceptable playmates for the child, insist on
screening letters and gifts to the child, and unilaterally alter court ordered visitation schedules. [FN167]
Few things completely undermine due process and the right to an impartial trial judge as do ex parte
communications between the court and one attorney. [FN168] Yet, many courts allow, or even encourage, GALs to
engage in ex parte communications with the judges. [FN169] This practice is typically unchallenged by the
attorneys *144 for the parents who are not inclined to ’make waves.’ Parents’ lawyers reasonably fear that
challenging the GAL on ethical grounds will result in the GAL’s retaliation against their clients. [FN170] However,
one conscientious Alabama lawyer serving as a GAL did question the status quo and recently requested an ethics
opinion from the state bar about the propriety of this practice when he became aware from ’sources that certain
jurisdictions consider it appropriate for a guardian ad litem to communicate directly and ex parte with the court.’
[FN171] The bar counsel correctly concluded that such conduct was ethically prohibited. [FN172]
One major treatise advises GALs on specific techniques to avoid such ex parte contacts, even where initiated by the
judge, in a tone that patently suggests that judges are