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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.



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

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  1. MiLo says:

    Oxy –

    BANG – BANG – BANG – That is me banging my head up against the wall.

    Love MiLO



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  2. ErinBrock says:

    Milo:
    Passing the ice pack your way!

    XXOO



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  3. OxDrover says:

    Dear MiLo, All I can do is to shake my head and “stress laugh” over it. I know it isn’t funny, not a “funny laugh” but a laugh to keep from jumping off a tall building or hitting myself in the head with a hammer. It is just one of those things that are so hard to comprehend even though we KNOW WHAT IS GOING ON.

    For the GAL to be that dense, stupid….fill in the term….is just beyond comprehension.



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  4. MiLo says:

    Oh, the GAL – first conversation I had with the woman – she told me to be quiet and listen, that she was trained in handling hostile people like me. Thing is, I hadn’t said anything yet!!! I kid you not. When I tried to ask if she was aware that my grand had neurological and emotional problems, she said, look you don’t run this show any longer. She said, if I were to believe you, that sounds serious. Does he see anyone for all of these so called problems. I supplied her with a list of medical professionals he had seen or was seeing, complete with addresses and phone numbers. That was 5 months ago. She just motioned the court to order me to supply her with medical records by the end of this month.

    She also motioned the court (and was granted) to keep me from discussing “the case” with grand, to quit talking negatively about Mom in front of grand, to quit discouraging grand from speaking freely to GAL, to quit discouraging grand from talking to Mom. Ofcourse, I was doing absolutely NONE of this, but that didn’t matter.

    I just received her first invoice, over $5,000. She charged $160 each (x2) for two unscheduled phone visits she attempted to place to my home while I was gone. This invoice was interesting – it showed she spent longer talking to P’s therapist than grands – she spent 4 hours interviewing the P (before ever meeting us or grand) – she spent 2 hours interviewing us and grand – she spent 2 1/2 hours reviewing records she now claims I never gave her – AND SO ON

    She talked to grand’s therapist then LIED to the Court about what the therapist said.

    When I told her grand’s reaction to hearing his Mom wanted to start visits (building a hiding spot out of a box and stating “she’ll never get me here” and furnishing it with a survival kit” her reply was “Isn’t that cute”

    I will finish later – grand want his bedtime snack and story.



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  5. OxDrover says:

    Well, the only thing I can see for you to do MiLo is to get the therapist there in PERSON in court to show the GAL lied….God bless you MiLo I will keep you in my prayers. ((((Hugs))))



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  6. ErinBrock says:

    I second that suggestion! BIG TIME!



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  7. MiLo says:

    Thanks guys, as always your support and understanding help deal with the “unthinkable”.

    Dr. Leedom – I think that there is a bottom line here, Children’s Lawyers are just that LAWYERS. They may know the law, they may know family law or juvenile law. They may take training courses on children, but they are not therapists, counselors, psychologists or psychiatrists. Therefore, are LAWYERS the professionals that should be advocating for the children?

    Also, on another blog, false belief about psychopaths, we are all very disgusted and horrified about the judge’s remarks and wonder why people in these positions do not receive better training and correct knowledge. But, how much training has the average “Joe Psychologist” had regarding psychopaths? Why does this seem to be something that is very often “off their radar”.

    While in my grandson’s psychologist’s office last week, I was glancing through one of her “trade journals” (I don’t remember the name of it). It had many articles on many different disorders and mental illnesses, everything from obesity in children to treating people who are now addicted to medical marijuana. There was page after page listing different conferences and training seminars for mental health professionals. ABSOLUTELY NOTHING on sociopaths/psychopaths.

    While false beliefs about s/p’s is so very dangerous, how in the world do you go about changing something that very few want to talk about?



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  8. stillinshock says:

    lve2laugh – “”I told her that there had been physical abuse in our marriage and in his current marriage. The kids have been there a few times when the police have been to their home. She told me that it is OK if their dad hits their stepmom as long as he is not hurting the girls”” No no no! In some counties now (more and more) it is considered abuse to the child if they are witness to abuse to a parent. Check in your county…..it is absolutely ridiculous that they will grant a P.O. to a parent for actual abuse but still give the abusive partner unsupervised visits of the child.



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  9. flowerpower says:

    My GAL experience,
    Paid alot of money to have the children represented by a young, nice guy who DID NOT GET IT. When their Dad had his redneck buddy build a virtual dirt and log barricade to block routes on our farm during the divorce..the GAL wanted me to tear it down with our tractor ….hey whats the big deal momma!!And of course, half his bill was paid for by the ex.

    Only one of the many crazy situations and how he handled it. Good ol boy lawyerin’ I guess.

    During mediation he did NOTHING to advocate for the children. Seems he didnt have the small town connections to matter. Or maybe he was planning on riding that tractor or fishing or huntin when it was all over..

    In my situation, small town good ol’ boy ties, outweigh any justice. Time for change folks..and I am ready to help but I need to know what to do.



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