You will likely be underwhelmed by your GAL, if you meet one. I say that, not as a crank. If you're new to family law courts, you may be wondering, “What is a guardian ad litem?” A Guardian ad Litem , also known as a GAL, is an attorney assigned to a case guided by the best interests of the child. They are required to be appointed where abuse or neglect of a child is pled.
By background, I hear complaints about family law courts often, sometimes bitterly delivered and usually unfairly so. Custody cases are among the most complex of all litigation; the courts are overwhelmed with the cases; not many people can afford to try all of the issues fully; only a small amount of time is available to hear the cases, because there are so many. Still, the judges in my area are conscientious, intelligent and experienced, doing the best they can given the above.
The complaint about GAL performance, though, strikes at a structural failing in the family courts, and not just in Missouri. That complaint arises from the dismaying performance of a large number of GAL's. I have usually kept my own counsel on the subject over the years. I tell all of my clients about it. Now it's your turn.
This blog is going to make me unpopular with about everyone in the system. It shouldn't. That's because this blog criticizes you, dear reader. This blog is about what happens when voters and their legislators order courts by statutes to address child abuse and neglect cases without funding. You get social work on the cheap which is neither. That's the natural consequence of an unfunded mandate and poorly thought out policy.
As I said, you will likely be unimpressed with your GAL; that is because you got the system you deserved. Voters complain about the GAL's to me but do nothing, like calling their legislator, or for that matter, not even bothering to learn the name of their legislator. So yes, I may be unpopular with you, too dear reader.
But I shouldn't be. Most lawyers are not telling you why you are or should be dismayed with most GAL's. A lot of them are GAL's. They go to training, they attend hours and hours of lectures, all telling them how vital they are. GAL standards are enshrined by no less than the body of judges who control their law licenses: the Missouri Supreme Court. (Rule 129, Appendix C.) GAL's get cool certificates and the well vocalized congratulations of the courts.
In fact, most GAL's get in the way and never reach these standards. They can't because they don't have time, or simply don't want to, or run amok.
THE TYPES OF GALS YOU'LL MEET IN FAMILY LAW
So let's start with the kinds of GAL you may meet as your case goes to the system. I count six types:
- The “Do nothing”
- The “Willfully ignorant”
- The “Power hungry”
- The “I'm late, I'm late”
- The “Time Card Puncher”
And then, yes, there are the few who are the selfless, and in this system, amazing, and heroic. I call these latter GAL's the “Selfless, Amazing, Heroic GALs.”
The “Do Nothing”
This one is easy to identify. They interview the parties at the courthouse, say a few words, ask a few questions and make a recommendation. You get one of these, and you better have a lawyer that knows child abuse/neglect cases, because this GAL will sack your case. Here is a saying that applies: “There is not idleness without a thousand troubles.”
The “Willfully Ignorant”
This GAL will do more than the “Do Nothing,” but will not listen to anyone about anything. They have the facts, but they will not crack open a book, read an article, talk to an expert or even call the former GAL to get any context. Your strategy here, see above. Here is the saying for them: “It is Harvard that has made him insufferable.”
The “Power Hungry”
This GAL will tell you how to parent your kid, amateur to amateur. The difference between you two will be GAL's ability to totally wreck your case. This one is kind of tricky. This GAL requires polite listening, diplomatically crafted words of agreement and more sessions with your lawyer to figure out what to do. Here is the saying for them: “Power often goes before talent.”
The “I'm Late, I'm Late”
This GAL is well meaning. The GAL cares. The GAL listens, but needs you to hurry up. This GAL shows up to court, one hour late, but has intelligent things to say, assuming they are thinking about the right case. Here is the saying for them: “Haste and careful work never go together.”
The “Time Card Puncher”
This is one of the better ones. They carve out time responsibly. They undertake more tasks than the others, including interviewing therapists and witnesses. They are unlikely to visit the home (but that is dangerous, I will point out). You may need to schedule an appointment with them two months out, but they will give you the full two hours for which you are scheduled. That may be problematic, if say, your child is in the care of a drug addicted, unmedicated paranoid schizophrenic. But they will allot a minimum standard of care and meet or exceed it. This is one you and your lawyer can deal with. I have no saying for them, but Iike them well enough.
The “Selfless, Amazing Hero”
This is a rare class. I have met them. They have worked on my cases. They go beyond what is normal. They do not care about compensation more than getting to the truth of the matter, and taking action. They are drawn from the same pool of humanity as the rest, but they are not the rest. You have met this kind of person in your religious organizations, your political meetings, your charity functions. They are one in one-thousand, but I am so glad for the diversity of humanity that these people are among us. Too few to count on. Too unfair to them to be counted on all the time. They would lose their homes and offices to bankruptcy. You and your lawyer have nothing to worry about with this GAL. Just assist them. Their generosity in spirit and actions is best summed up with this: “The best generosity is that which is quick.”
But they are the exception that proves the rule: the GAL system needs to be scrapped.
WHY WE HAVE A POOR GUARDIAN AD LITEM SYSTEM
Before I go into why we need to move away from the GAL system, let's talk about the behavior of a human being who works for a living. Humans work harder when paid for their work. Humans work harder and perform better when they have immediate accountability, most often, their supervisor, or in my profession, their client. Most humans, working for a living or not, enjoy power and exercise it without hesitation when it's granted to them. They get in trouble when they are unaccountable to others.
Now here is the rub. Believe it or not, lawyers are human. Our institutions do not recognize that. And I do not mean to fault the judicial system. It's you dear reader. You expect from GAL's what you do not expect from others or yourself: hard, effective work arising from no pay and inadequate training. Power that is exercised well under little supervision.
Fact 1: Lawyers Are Not Trained Social Workers
Humans work better in roles for which they are trained. Lawyers are uneducated in family dynamics. They have law degrees, not social work degrees. When was the last time your mistook a lawyer for a social worker? Social work is about understanding dynamics. And social work at the family level is about understanding those dynamics and finding the causes of dysfunction, and also finding abuse or neglect, including whether, why, how or who dunnit.
Lawyers, [read human beings trained in law and advocacy for the adversarial system], have 3 years of intense training. Most law schools rigorously educate the pupils to identify legal issues, and press one side of those issues without regard to their own beliefs. That's it. Then to be GAL's they sit through 13 to 18 or so hours of lecture on families a year. Small beer compared to the thousands of hours spent on legal issue identification and advocacy. And it shows, and will always show. Continuing Legal Education credits are not degrees of higher learning in social work, ever.
Fact 2: Your Custody Case Doesn't Pay the Bills, Not Even Close
Let's talk about you, dear reader. You do not work in your job without pay. You work harder and perform better if you are directly accountable to somebody. You will also exercise power when offered, and sometimes you make mistakes when you do it. And you make more mistakes if you are not directly accountable to somebody.
Although many graduates with law degrees come away feeling stripped of their humanity, they remain human. The family practice lawyer is often a solo or small firm. They pay rent, utilities and taxes at two places, home and office. They pay a person to help them and the taxes for that. They need income, and the legal profession has too many lawyers for a big income. They are looking at the bills and income monthly and looking at who is paying on time so they can plan the next month.
So if your GAL is practicing in a court that has no tax money to pay for GAL's, then the parents pay for the GAL. Most families can barely support one lawyer, much less their lawyer and a GAL. Guess what? They do not pay the GAL, or pay slowly or pay when they can. And the GAL knows it. The GAL is a lawyer and the lawyer is a human. Humans like to….be paid for their work. See where I am going?
Now, in that system, the “GAL case” the lawyer receives is either a no pay, a slow pay, or uneven pay case. That is true, even if you dear reader, pay on time as ordered by the courts, but the other side will not or cannot. In that setting, the lawyer is getting half pay, and that not even monthly. The lawyers' bills come monthly and must be paid monthly. And if both parents pay on time, recall that your case is not helping their monthly ordeal until trial.
So guess what? Your case is not the case the GAL works on as a priority. Why? See the part of this blog talking about humans wanting to be paid for hard work. See the part about lawyers have lots of bills. See part about lawyer getting monthly bills. See the part about lawyer not sure lawyer will be paid. See the part about lawyers lacking education relevant to task. It really is hard to do something for which you are uneducated.
WHO SUFFERS? WHO'S RESPONSIBLE?
Think about what all this means: the CHILD ABUSE AND NEGLECT VICTIM is at the bottom of the priority list for the lawyer. That is not because the lawyer is mean. It's because you are unrealistic, dear reader. You expect of them what you do not expect of yourself at your job. And children are hurt by your expectation, or they at least are not getting help they could be getting. I say that you are responsible, because only you can change the law.
ASSUMPTIONS ABOUT A GUARDIAN AD LITEM'S ACCOUNTABILITY
When I write the child abuse neglect victim is at the bottom of the GAL's priority list, I can almost hear the indoctrinated recoiling. “Lawyers are officers of the Court.” “Lawyers are ordered to pay attention to these cases.” “Lawyers are held to a different standard.” “Lawyers are accountable to the court.” And this old chestnut: “GALs are the eyes and ears of the court.”
All of that stuff just makes you, judges and lawyers feel good about something that does not work. It's baloney. Take officers of the court. That just means we are licensed by the branch of government called the judiciary (read, “courts”). We are subject to their regulation. And I meant the regulations of the Missouri Supreme Court, our regulatory body, by the way. Not your trial judge. Only in that sense, are we officers of the court.
HOW THINGS REALLY WORK IN CUSTODY CASES
Try looking at it this way. For the readers who are licensed drivers: You dear licensed driver are subject to laws regulating your driving by virtue of your license to drive. The car you are driving must be in working order, taxed and displaying tags that prove it, and you are not to go over the speed limit, ever. You violate the regulations enough, the government revokes your license.
But you dear licensed driver are not an officer of the License Bureau. You do not enforce their laws. You do not help them in any way. You certainly are not getting paid by them. You are simply being regulated by the Article I branch of government, out of Jeff City, MO, because it gave you a license to drive.
The same is true about a law license. We are not on the payroll of the courts. We do not enforce their rules. Bailiffs enforce their rules against us. We, like drivers, have licenses subject to the regulations made by Jeff City. These are rules like: be candid to the court. Don't lie to anyone, ever. Do stuff on time. Tell your client you are doing stuff. Give advice to your client about stuff they or you need to do. But lawyers are not ordered to show up at the judge's office and type the judge's notes, like good little officers of the court. Break the regulations enough though, and your law license gets dinged, just like the licensed driver for chronically speeding. Officer of the court means: regulated by the Article III part of government, out of Jeff City, because it gave out the license to practice law.
My Responses to These Assumptions
“Lawyers are ordered to pay attention to the case.” I have heard that defense of appointed counsel. In practical terms, according to the case law, for GAL's it means: showing up for court and asking questions. Interviewing (or not) the child whose best interests you promote/defend. Meeting with the parent or guardian somewhere at some time. This is not a high standard. This is not what is necessary to find abuse or neglect. This saying is a thin veil to cover a seriously bad policy.
“Lawyers are accountable to the court.” See How Things Really Work in Family Law, above.
“Lawyers are held to a different standard.” See How Things Really Work in Family Law, above.
“GAL's are the eyes and ears of the court.” Fairy tale to tell fretful family law litigants, guilt ridden judges and the GAL who is an egoist.
FACT 1: GALS DON'T HAVE TO ANSWER TO ANYONE
GALs in practical terms are not accountable to the child (whatever that could mean, considering the child, is umm, a child); GAL's are accountable only to one person, the trial judge. Unfortunately, that's not the same as being accountable to a client. There are big differences. And it all boils down to this: the GAL is less accountable to the judge than the lawyer is to the client.
A Lawyer's Accountability
A divorce lawyer has more accountability than a GAL does. Here is why. The client bugs the lawyer. They do pesky things like ask their lawyer questions, sometimes daily. They go to their offices, demand meetings. They get them. They demand phone calls, emails and texts. The lawyer does as much as it takes and as much as the client can afford. Clients in those meetings and communications demand motions, pleadings and relief. They get them because the lawyer is accountable to them.
Clients get upset when lawyers lose. They will fire lawyers who are not interviewing witnesses, researching and generally working up the case. They may not pay the lawyer's monthly bill if they think the lawyer is sloughing off. Recall that monthly bills are what the lawyer worries about every 30 days, if not every day. For doing all this, the lawyer really wants to be paid, and paid quickly.
FACT 2: THERE'S A SHORTLIST OF ACTUAL GUARDIAN AD LITEM DUTIES
The client-lawyer dynamic does not exists for GAL cases. Remember GAL duties? The GAL duties, combined with the duties of being a lawyer are on a short list:
- Be candid to the trial judge
- interview the child beforehand (if you want to)
- meet the parents/guardians at some point
- ask questions in court
So, there is not much for a judge to complain about, compared to a client.
There is only courtroom interaction between judge and GAL, or at least those are the rules. The judge by law cannot phone, text or e-mail the GAL at anytime and ask how the investigation is going, or ask things like, “did you interview grandma yet?”
The GAL represents the best interests of the child. Guess what? The best interests of the child does not knock on the office door, repeatedly phone the office or complain to the bar or your trial judge. It is not a coincidence that the GAL's rarely file any kind of motion except to continue or demand money for a deposit, or request a sanction against a parent who slow pays or does not pay.
They often lose the latter motion, by the way. Which is also important. See Your Custody Case Doesn't Pay the Bills, Not Even Close, above, about workers wanting be paid for work performed.
FACT 3: JUDGES DON'T ORDER PARENTS TO PAY GALS FOR THEIR WORK
The GAL's do not get paid because the judge sits at cross purposes with the GAL when it comes to money. The one thing a judge hears evidence about in every custody case is the income of the parties. They need to hear to determine the amount of child support. When the GAL who works the case submits a large bill, the judge gets annoyed. As in, how do the minimum wage earning parents pay $10,000.00? Really good question. They can't. Guess what? The judge won't order it.
Now look at it from the GAL's point of view. That was $10,000.00 of work; $10,000.00 of time and effort that could have been spent on a client who will pay. See Your Custody Case Doesn't Pay the Bills, Not Even Close, above, about human beings wanting to be paid for work performed. See Why We Have a Poor Guardian Ad Litem System, above about how humans behave when they know they will not get paid for hard work. See Lawyers Are Not Trained Social Workers, above about lack of education suited to finding abuse and neglect, which is difficult.
Recall that your GAL is a lawyer who stares at their monthly household and office bills and wonders how they get paid, each month. The GAL gets the fee for the GAL case usually at the end of the case, when judgment is entered. The GAL gets paid by the judgment from judges who express, usually, that the bill is too high in those situations where the GAL actually worked the case and honestly billed for the work. See above, humans like to be paid to work hard. See above, humans perform better and they work harder when paid and held accountable. In other words, the GAL will give short shrift to the natural accountability that comes from being paid, because they don't believe they will be paid.
FACT 4: GALS ARE RARELY FIRED (AND THEY KNOW IT)
Here is another way that GAL's are not really accountable like lawyers are to clients. Judges will not, except rarely, fire the GAL. Recall the GAL duties are easy to meet: interview the child or not, meet the parents/guardians at some point, ask questions in court, be candid in court. Also, the judges are required—meaning they cannot do otherwise–to utilize GAL's when a party accuses the other party of abuse or neglect. The judges absolutely need lawyers to be willing to perform work as a GAL. The judge knows that the GAL cannot be burdened with $10,000.00 worth of work, not be paid, and, further, risk being publicly fired. How many other lawyers will line up to take the loss leader cases and also risk the ridicule of the parties, the public and the judiciary for being fired thereafter? The judge is in a bad position and the GAL knows it.
Consider this: Think about what a judge wants to do with all of those custody cases sitting on the docket. Just like you, the judge wants them finally decided. To do that, the judge needs the docket to move. Now, thinking of accountability of the GAL to the judge, compared to the lawyer's accountability to the client, what's the judge gonna do, fire the GAL who is performing exactly as the caselaw expects? What happens to the docket then? The GAL knows this, too.
There is a bit of co-dependency here. Few lawyers actually like GAL work. They often do it to curry favor with the judge and are looking at the cases as loss leaders. The judges know that. Guess what, turns out judges once practiced law and understand the monthly bills for home and office. Judges are grateful for the unpaid work they are demanding of the lawyer who practices before them. So how does this judge convince lawyers to get an an appointment list? Well, again, the judge will use a light hand. The GAL knows this.
Finally, judges are too busy to play a role here as well. The courts are crammed with these cases. Considering the really low standard applied to GAL's in practice, and the large number of GAL cases, why on earth would a judge fire a GAL and stall the case? And at the same time, scare off every other potential GAL and stall future cases too.
OH, that's so wrong, you think. Judges must uphold the highest standard possible, damn the stalled trial docket with cases that are taking too long anyway. We must condemn them so they will not do this.
A NEED FOR NEW AND EFFECTIVE FAMILY LAW POLICIES
Lawyers must ride in full knight's panoply and charge at child abuse and neglect, in reckless disregard of their own families, and do it for free! So the lawyers as GALs are not human because they attended and graduate law school? They will sign up for the possibility of public humiliation, and do that for no money. None of that matters, because it ain't right? Because lawyers are not human and do not follow human norms in the area of work?
Stifle that grin. If you dehumanize lawyers, or place them on a pedestal, you do yourself no favors. You need policies that human beings will likely implement if you want success from a government program, or for that matter from a business. Here we have government policy impacting a lawyer's business, so developing rules for a successful policy is doubly required. It's triply required because we are dealing with child abuse and neglect.
The Importance of Effective Policy
Success for a GAL is defined as finding out child abuse and neglect, and protecting that child. Kinda important to have a policy that is effective here. Children are our society's future. Abused or neglected children, if not helped, carry torment with them that correlates with crime and dysfunction. And right now they are getting abused and neglected and our courts are not detecting it as well as they should. All because legislators and voters expect what is unreasonable of GALs. Make no mistake, I take it personally. Child abuse is one legal issue that I am passionate about.
Who Is Responsible for Family Law Policy Change?
You, dear reader, are responsible for voting for legislators who write laws. The courts are following your laws. And those laws have set up a structurally unsound process for finding abuse and neglect in custody cases. And that means that only the parents get interviewed by the GAL, the home does not get visited, the neighbor who heard the child scream will not get a phone call, the law enforcement officer's detailed report will not get read. You think I am kidding? I have turned over to GAL's audio recordings of abuse, transcripts of witnesses who saw abuse, photographs of injuries, only to leave the courtroom with the conviction that the GAL did not review them.
GALS CURRENTLY HAVE TOO MUCH POWER
And now the power thing. GAL's by tradition, by co-dependency with the court or by reputation, get a lot of power in a custody case. If they want to, they may demand to see the child at any given time. They make decisions about your temporary contact to which the courts will usually defer. They make recommendations about parental decision making rights, contact and other things straight to the court. They have power. Power over your reputation, over the progress of your case and certainly as to your relationship with your child over the next several years. As said above, there is not much in the way of accountability as to that power.
So now, think about power. Humans like power. We like to use it. We are not at our best exercising power when we are less accountable than circumstances require. Humans in those circumstances will make more mistakes than otherwise that impact other people, including children. Sometimes really big mistakes. Some humans are running the lives of the powerless, berating them and making decisions while generally not paying attention. And guess what, GAL's are humans, and a fraction of them will do this.
What? How can that be? Ahem, GAL's come from a pool of humanity. Some prosecutors do drugs. Some Senators take bribes. GAL's work in a system to which they really are not that accountable.
Bad stuff happens. I have seen it. You have too. Listen in court and you will hear a GAL say something asinine, like, the parents need to behave less like their children. That is said far more often than can possibly be true. And I have heard it far too many times outside of court, in hallways, meeting rooms and on the phone.
THE FLAWED SOLUTION TO THE GAL PROBLEM THAT'S ALREADY IN PLACE
We have a mechanism in the law that would work to solve the accountability issues for guardian ad litems. It's the assignment of special masters. A special master is generally a subordinate official appointed by a judge to make sure that judicial orders are actually followed. They are regulated by Supreme Court Rule 68. These lawyers undertake investigation, receive testimony and evidence, and write recommendations to the judge about what they found.
Special masters are accountable. Their work is in writing, scrutinized later by the judge, and held open to criticism by the litigants. Their opinions are subject to review by appellate courts, when accepted by the judge. It sounds like using a special master's process would solve the GAL problem. You might even think that considering the importance of child abuse and neglect, we would already do exactly that. Wrong.
Why Special Masters Don't Work: Money
Here is the problem: special masters are expensive. Special masters usually address financial issues for that reason. And for that reason the litigants willingly pay the special master, fully, because they hope to get a return on their money. Rarely can family law litigants afford them. The abuser will not want to pay, certainly.
But it is interesting. The cynic would say our judicial system values money issues over child abuse and neglect issues. I keep coming back to my point. You cannot apply rules where there is no realistic expectation that they will be followed. There is no reason to not write a special master's rule for GAL's, except for the fact that no human being would bankrupt their law practice, give up their homes, and make their children destitute for such a system. Unfunded mandates fail. So that is why we have the system we've got. It's not optimal, but currying favor is a currency of a sort and the price is not much work. We are dealing with humans, here.
Why Special Masters Don't Work: Education
And I am back to education. A problem with a special master for abuse and neglect issues is the same as the lawyer in the GAL system. Lack of education in the field to which they investigate. There is a reason why universities give out master's degrees in social work. They really do teach their students about family dynamics, the integration of forensic evaluations, outside documentary sources like police reports, school records, also in-person interviews, family trees and family resource maps and so on to develop a comprehensive understanding of how a family works. They are trained specifically in knowing abuse or neglect characteristics within the family and the signs that a family suffers from child abuse or neglect in a way that lawyers and judges usually do not know. They learned time-worn models of family dynamics that are useful. I have met with the professors, talked to students, even spoken to them on GAL's. I have hired social workers in abuse and neglect cases. Their education was not based on a weak curriculum.
WHY LAWYERS ARE NOT SUITED TO GAL WORK
Make no mistake, when I say lawyers are not suited for GAL work in general because of a lack of relevant formal higher education, I mean most GAL's are incompetent. That incompetency is layered with all the other problems my blog brought up. Lack of accountability. Unfunded mandates. A tacit understanding between court and GAL that this is the best we can do.
I mean it. We should remove lawyer GAL's from the system.
We really need graduate level professionals who are not lawyers to assist the courts in abuse or neglect cases. They are less expensive than GAL's, they are better trained and much better at the work anyway. Right now we have institutionalized social work on the cheap, gaining neither. But, I have a proposal as to how to get rid of lawyers and put in people who are more likely to know what they are doing, and actually do it. That way you dear reader, may quit complaining and actually get involved and solve the problem. Wink, wink, I will be right there with you.
TURNING THE GUARDIAN AD LITEM SYSTEM AROUND: MY SOLUTION
Most of the GAL work needs to be performed by a licensed clinical social worker, or by a person with a Master's or Ph.D in Social Work. First, lawyers are expensive and the social workers are not. Because of their low costs, they may be placed on court payroll, subject to discipline, and other forms of accountability for not meeting the much more rigorous standards of their profession, or that particular court.
Proposal 1: Divide GAL and Social Worker Work
Ideally, the GAL would act as barrister; with no time spent with investigation, the GAL would be presenting the social worker's conclusions in the form of testimony and documentary evidence, and even written reports, as prepared by the social worker. That would simply take the time of trial, and not the many hours of investigation that abuse and neglect issues actually require of today's GAL, but which are usually not delivered in practice. The social worker would have done that. Problems in the efficacy of a social worker's conclusions could be addressed to the social worker by the barrister, who must too look to the best interests of the child.
Proposal 2: Settlement
As to settlement, the GAL would simply make recommendations based on the GAL's assessment of information gathered by investigation of the social worker and make recommendations to the court accordingly. Or more simply, the report could be placed before the judge for review as a condition of the court accepting and approving settlement. Either way, the cost to the litigants or the court system for GAL work would be limited. The GAL would add value by presenting the case in accordance with the rules of evidence.
Proposal 3: Use Expert Testimony
The case could be put very easily by use of Missouri's rules on the admissibility of expert testimony. Social workers are already allowed to address abuse and neglect issues as an expert. The hearsay rule would not exclude fully from consideration the investigation of the social worker. Missouri law allows hearsay to be presented, though not as evidence, in laying down the foundational basis for the expert's conclusion(s). This manner of presentation would be sufficient for the court to receive a broad outline of the family dynamics, conclusions as to issues regarding abuse or neglect. However, the expenses of litigation for such a comprehensive analysis would be nil.
This may sound similar to the juvenile justice system, which has a state bar's worth of detractors that it deserves. However, the criticisms of that system, opacity, incompetent social work, incompetently performed forensic evaluations and the insular climate for decision making would be avoided in the family law courts. For the most part, family law matters are undertaken in a more open courtroom, with a much more liberal allowance for spectators. That allows for greater accountability to the public.
Proposal 4: Add Accountability
The social work would be performed by people accountable directly to the court as contrasted with an independent bureaucracy not known for deliberative decision making. I am talking about the Department of Social Services. [Forgive me those who work there and do a good job. I am not talking about you.] Also the social worker, though an advocate for the child by design, would not be a party, unlike juvenile officers, who also lack a requirement for any education relevant to the field of family dynamics. As to education, the master's level social work degree or better education requirement would be higher than the credentials usually on display by social workers in juvenile courts. The family law courts would be deciding between individual citizens, which avoids an institutional bias in favor of one party or another, which is a criticism of the juvenile system.
Proposal 5: Require Psychological Evaluations
Any forensic psychological evaluations would be performed by evaluators chosen and paid by the parties, avoiding the entrenchment of psychologists with the social worker, and thus the possibility of skewing forensic results in favor the social worker's opinion. The latter is a problem for the juvenile courts, where social workers choose from an approved list of inexpensive forensic evaluators, leading to a pernicious dependency by the evaluators on individual social workers, with predictable results.
Proposal 6: No Appointment of Counsel for Parents
Finally, the family law courts allow no appointment of counsel for parents. That setting in general provides a more robust adversarial process than the juvenile court, which pays lawyers to defend against juvenile officers also paid by it, and at times, a parent's lawyer is assigned by a juvenile officer and then approved by the court. In other words, the independence of the attorneys would go a long way to ensure that family law court decisions are case specific, based in reason and fact, and not based on institutional prerogatives in an exclusive forum.
Proposal 7: How to Pay for This New System
Expenses for the system would be paid from a fund from family law court costs. To adjust for the added expense, court costs could be taxed on family law cases based on a sliding scale in accordance with wealth and income. The disclosure of wealth and income information is almost always a requirement in most family law cases anyway. So the sliding scale could be applied by court ruling, according to a formula set out by judicial regulation. In Missouri, child support is based upon the application of a formula unless found unjust or inappropriate. A similar framework could be established, but also taking into consideration the extent of assets owned by the parties.
To get there, we need a campaign to change the law and people's minds.
“The advocate seemingly makes the ultimate decisions regarding what is in the child's best interest, testifies (although perhaps not under oath) in conclusory terms regarding the child's best interest, and performs the duties of an attorney by advocating his position before the court in the adversary process. Indeed, the power is so great that a stated interest of the child may be ignored while the interest perceived by the guardian is espoused.” Wallace J. Mlyniec, The Child Advocate in Private Custody Disputes: A Role in Search of a Standard, 16 J. Fam. L. 1, 9-10 (1977-78).
If you have stayed with me through this blog, you may know that I am an unapologetic critic of the Guardian ad Litem process in custody matters This process installs one person as lawyer, witness, expert witness, party and decision maker. That is too much power for a person who may be too busy, too biased, too power-hungry, too tired, or just as bad, simply disinterested for the matter at hand. Even under the best of circumstances, the unbiased guardian ad litem usurps the role of the judge. The insertion of this malformed judicial and statutory creature in custody matters undermines judicial function while clothing often faulty outcomes in a cheap costume of justice. There exists an easy alternative.
Yes, appoint a lawyer as an attorney for the child. The regulations for attorneys allow the attorney to make decisions and arguments for minors by the same rules that allow them to represent the incapacitated. The lawyer still must look to the best interests for most minors.
However, the appointed lawyer for the child should merely be the child's advocate in a room of advocates. An appointed lawyer may not testify nor make statements to the court except under the same limited circumstances as any other lawyer. The lawyer may only argue, not recommend, custodial outcomes.
The appointed lawyer is not a set of eyes and ears of the court—whatever that means. And the appointed lawyer clearly may not communicate with the court ex parte, which sometimes occurs. This proposed process would bestow neither a virtue upon the appointed lawyer nor an official seal upon the lawyer's advocacy. That places all lawyers in the courtroom upon equal footing. This process would force courts to choose between the best inferences to be gained from a fair view of the evidence, rather than weighing the worth of the very person the court appointed to be its eyes and ears.