Generally parents are the best decision maker as to their own children's needs. The Constitution recognizes that fact and gives parents the right of unrestricted access to their children subject to federal and state restrictions to that right. The United States Supreme Court stated a parent's right to "the companionship, care, custody and management of his or her children" is an interest "far more precious" than any property right. May v. Anderson, 345 US 528, 533; 73 S Ct 840,843,(1952). “A parent's right to care and companionship of his or her children are so fundamental, as to be guaranteed protection under the First, Ninth, and Fourteenth Amendments of the United States Constitution.” In re: J.S.and C.,324 A 2d 90; supra 129 NJ Super, at 489.
However, when parents file for a divorce they invite a Court's authority into their family under the state's interest in protecting children. The divorce may be the first time a parent has had their parental authority questioned.
The powers and duties of a child's representative are similar to those of a guardian ad litem
. Unlike a guardian ad litem a child's representative shall consider the wishes of the child and not render an opinion, recommendation, or report to the court and is not called as a witness but instead shall offer evidence-based legal arguments. In other words, the child's representative is a hybrid of a child's attorney and a child's guardian ad litem. “The more mature the child, the likelier the court is to appoint an attorney to represent the child; the less mature, the likelier that a guardian ad litem will be appointed; and for children of intermediate maturity, there is the child's representative.” COONEY v. ROSSITER, 583 F.3d 967 (2009).
Ninety percent of parental issues are determined by the parents through parenting agreements. (Melton, Petrila, Polythress & Slobogin, 2007.) When parents cannot agree as to the decision making and caretaking decisions for their children then the Court intervenes and, by default, is the sole decision maker as to allocating parental duties. In making that determination, the Court must rely on the “best interest factors” as designated by statute.
Further, the statutes provide systems to help evaluate those factors. A psychological evaluation (604.b); an in-camera interview with the children; the process of weighing the testimony and credibility of the witnesses; and an attorney appointed to act in one of three capacities for the children (Child's Representative (CR); Attorney for the Child (AFC); Guardian ad Litem (GAL).
The purpose of the appointment of a GAL is to have a neutral, independent fact finder who reports to the Court. Neither party hires the GAL: The GAL acts only under the direction of the Court. In parenting matters the GAL is required to be an attorney and have practiced for at least two years. Further, the GAL must have completed special and specific training geared toward child related issues. The GAL should have some understanding of family dynamics, cultural and environmental differences, as well as an understanding of the legal issues presented.
The psychological evaluator (604.b) is taxed with establishing the parent's abilities and deficits as well as the fit between those attributes involved in the child's needs. The GAL, however, cannot make psychological determinations but is taxed with a more practical approach. The GAL can investigate the facts as they relate to the statutory factors: who wants the children; why do they want the children; what do the children want; and why; how are the children functioning in their home, school and community; are the children safe with each parent. The GAL can inform the court if each parent has a reasonable after-divorce plan and if they seem to have been acting toward the children's needs. Some times the investigation turns up no allegations of psychological disorder but merely bad decision making by the parents. The GAL is the one in the trenches seeing the interaction between the parents and the children outside of the clinical setting.
Because we do not represent either party, nor do we represent the children, we turn to the statutory language to find our role. We are to investigate; inform the court; and make a recommendation. We historically have been called “The eyes and the ears of the court” but that ignores the third element of our duties: to make a recommendation.
WHAT WE ARE:
1. INVESTIGATOR: Not a private eye. We are not required to interview every one the parties' request: We know grandma and grandpa like their son (the father). We need to talk to those witnesses that the GAL deems necessary to get a view of the problems. If the children are doing well in school and there are no allegations that the parents are not working effectively with the school, then there is no reason to interview the teachers. Remember, the parties are oppositional and they will set the parameters (to a great extent) of where the investigation wanders. If Dad alleges Mother does drugs, investigate that. If Mother alleges Father hits the kids, investigate that. Investigate those factors in dispute. If both parents say there was no abuse between them in the marriage there is no need to look further (attorney small print: unless other factors hint of other deviousness such as they both lied to DCFS because they both hit the kids).
2. REPORTER TO THE COURT: What do we report? Everything. The duties do not include the right to editorialize the investigation. That part where we add your thoughts is the duty to make a recommendation. The Judge cannot go to the home, cannot have witnesses unleashed from objections and cannot see both parties interact with each other or the children. That is what the Court needs to be informed about. The Court may have too much minutia with that type of reporting but without a factual recitation of what you found, you run the risk of layering for your viewpoint.
3. MAKE A RECOMMENDATION. This is often harder for the GAL than it is for the Judge. We have become close to these children. We have been immersed in their lives. They look to us, often, as the one who will make it all right. We, as GAL's loose sleep every night worrying that we are not doing the right thing by these charges. I know the Judges go through the same angst, but our relationship with the children is often unique. Remember, if the recommendation was easy, there would be no GAL or psychological evaluation. The Judges know that. They know there are usually serious issues for the necessity of special appointments on a case. The Judge has a difficulty when they have an inherent belief system that values a different factor than the Gal's weight on the factors. The Judge, above all, wants to do right by these children. So…. Make the best recommendation in your belief system that you can. Do not try to mirror the Judge's belief system because then you would not be neutral. The Judge uses your information, your report, and weighs his factors. That is your job… not to have a matching recommendation to the Judge's determination.
WHAT WE ARE NOT:
1. We are not a psychologist determining a party's mental health. We can offer our observations and apply our interpretation of those observations as long as the interpretation is that of a normal, regular person such as “There seems to be something wrong with her. As an example: “She didn't understand what I said to her and was confused about what was going on” and “She didn't get that hoarding in the household caused her children to be socially isolated.”
2. We are not a decision maker. The Court has been tasked with making custody decisions. The Court is allowed to rely on facts one of which is the recommendation of a GAL. It is a compliment to the system when a Court does not always agree with a GAL recommendation because that means the system is working. The Gal looks at the ten factors, one of which, through their own personal experience, has a smidge more weight than the others. Each Judge has one factor that has a smidge more weight than the others. On a close case, the difference may be that smidge. Often, the GAL has formed a bond with the children. I hope that happens almost every time because this is the element that makes us important to the system of protecting children. We need to care about their welfare as much as the parents should care.
3. We are not the children's attorney. We fight for the aura around the children called “best interests”. We do not stand up for what they want because what they want may not be the right answer. However, when all other factors are relatively equal, what they want can be supported.
4. We are not social workers. We can recommend that the children and or the parents attend counseling. We do not counsel. We can recommend that the children get tutoring. We do not tutor. We can recommend a parenting schedule but we do not live those parties' lives.
5. We are not judges of social conscious. The “floor” of housekeeping is not our standards; the standard of religious beliefs is not our belief; the comparison of parenting skills is not our skills. The statute provides that GAL's are attorneys, not housekeepers, good parents or religious leaders. I have interviewed parties in terrible locations, terrible homes, with terrible parenting skills. These problems are only one element of one factor to consider. Occasionally one problem can be so critical that it is the deciding factor. (As an example, a really great father, connected to the children, teaches them morals and social skills, involves them in family and church community but lives on a street with repeated muggings; shootings and gang warfare while the other parent lives in a safe community).
CHILD REPRESENTATIVE (CR)
The designation of Child Representative evolved to cover the distance between the old-fashioned GAL who was merely an investigator to the CR who zealously fought for the child's stated goals. The CR should advocate for the best interest of the child and not necessarily for the child's stated wishes. This puts the duty on the CR of deciding what to advocate for: what are the best interests of the child. The CR must make his/her own professional determination prior to launching representation of those best interests. Like the GAL who must weigh the best interest factors in order to make a recommendation, the GAL must also weigh those factors. The CR has the right to fully participate in the litigation and make evidence based legal based arguments. How do GAL's and CR differ? While the GAL provides a written report and recommendation and is subject to cross examination, the CR's recommendations are made in pre-trial which is not subject to cross examination.
ATTORNEY FOR CHILD
An AFC is an attorney who happens to have a minor for a client. The duties of an AFC include advocacy, file pleadings, subpoena witnesses and examine witnesses and advocate the child's position. The AFC should focus the proceedings on the child's best interest and protect the child throughout the proceedings.