Monday, January 11, 2010

COURT-APPOINTED PARENTING EVALUATORS AND GUARDIANS AD LITEM: PRACTICAL REALITIES AND AN ARGUMENT FOR ABOLITION

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COURT-APPOINTED PARENTING EVALUATORS AND GUARDIANS AD LITEM:

PRACTICAL REALITIES AND AN ARGUMENT FOR ABOLITION

© 2006 by Margaret K. Dore, Esq. 1

Seattle, Washington

A. Introduction

This article describes the practical realities of child custody recommendations by court-appointed parenting evaluators and guardians ad litem. It argues that given these realities, the role of such persons should be abolished from child custody practice. Only with this course will the problems with their use be eliminated. Children will be better protected by the courts.

B. The Evaluation Process

Parenting evaluators and guardians ad litem
investigate custody arrangements and report back to
the court with their recommendations.2 In some

ALSO IN THIS ISSUE

Third Party Custody and Visitation: Illinois Comes to Terms with Troxel v. Granville

by David M. Cotter . . . .. Page 61

states, the guardian ad litem does not make a

"recommendation," but instead provides his position via a brief.3

Evaluators and guardians ad litem are also known as custody investigators, forensic experts and law guardians.4 Evaluators are usually psychologists or social workers; guardians ad litem are often lawyers. Sometimes guardians ad litem are lay persons, for example, with the CASA program.5 Many, if not most of these persons are hardworking and conscientious.

1. Appointment

It is not uncommon for an evaluator/guardian ad
litem to be appointed via nomination or suggestion.6
With this situation, attorneys can and do advocate
for the appointment of evaluators/guardians ad litem
whose views are compatible to their cases. For
example, if a father claims that the mother is
alienating him from the child, the father's attorney
might suggest evaluators known to find alienation
determinative.

©COPYRIGHT 2006 BY THE NATIONAL LEGAL RESEARCH GROUP, INC., A RESEARCH GROUP COMPANY

DIVORCE LITIGATION

with the parents and the children.

In some courts, it is permissible for attorneys to

contact evaluators/guardians ad litem prior to appointment. Such contact can be ostensibly to verify availability. Its real purpose may be to "test the waters" regarding one's case. If the reaction is favorable, the attorney will move forward to
advocate appointment. If the reaction is

unfavorable, the attorney may look elsewhere.
Certain attorneys also tend to work with certain
evaluators/guardians ad litem. In other words, they
develop business relationships. With these

circumstances, the person appointed can be pre-
aligned to one side.

2. Investigation

Once appointment is made, the lobbying campaign continues. Each side provides the evaluator/guardian ad litem with information including multiple level hearsay.

Evaluators/guardians ad litem also typically meet

Evaluators/guardians ad litem may contact third

parties. They may also conduct or commission psychological (profile) testing for the parents or the children.7

3. Report

The results of the investigation, any
psychological testing and recommendations of the
evaluator/guardian ad litem are typically
summarized in a report filed with the court.8 In
these reports, the evaluator/guardian ad litem may
or may not rely on applicable law. This

phenomenon has been documented in at least one
reported decision. See Gilbert v. Gilbert, 664 A.2d
239, 242 at fn. 2 (Vt. 1995) (describing survey
results).9

Evaluators/guardians ad litem may also rely on their own personal, social or cultural values. Paul S. Appelbaum, M.D. states:

DIVORCE LITIGATION

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When an evaluator recommends [a child's

placement] we are learning not about the
relative capacities of the parties but, instead,
about the relative values of the evaluators.10

4. Trial

By the time of trial, the evaluator/guardian ad
litem is in the position of defending his report and
recommendations. In states where the guardian ad
litem files a brief, he is in the position of defending
the brief.

Factors encouraging this phenomenon include the need of the evaluator/guardian ad litem to maintain his reputation, to thereby gain more appointments.11 He may also be concerned that the judge will reduce his fees if his recommendation or brief does not prevail.12

At this point, the evaluator/guardian ad litem's recommendations can become more strongly stated, i.e., more "black and white". The recommended parent may thus be portrayed as more clearly "good" and the other as more clearly "bad." But the reality may be in the middle, i.e., that like all of us, neither parent is perfect.

At trial, the evaluator/guardian ad litem typically testifies about his report and recommendations. This testimony typically includes hearsay previously provided by the parties.13 Repeated yet again, its substance can become grossly distorted—like a story repeated multiple times as part of a children's "telephone game."14

Evaluator/guardian ad litem testimony can also
include opinions on credibility.15 The author has
seen as a basis for such opinions, a parent's
psychological profile, for example, that a parent has
an "elevated lie scale." The author has observed
such testimony to be extremely prejudicial.16


The above situation is quite different from the

admission of an investigator's testimony in other
contexts. For example, an investigator in a criminal
trial would not be allowed to testify as to his or her
recommendations regarding conviction, as to
hearsay, or as to his or her opinion on witness
credibility.17

C. Judicial Reliance on Evaluators/Guardians

Ad litem

Most judges perceive evaluators/guardians ad litem as neutral investigators or advisors.18 Evaluator-psychologists can be held in especially high esteem.

With this status, the reports and
recommendations of an evaluator/guardian ad litem
can become the factual and legal standard for trial.
The burden of the non-recommended party is thus
to disprove a factual and legal standard. The burden
of the recommended party is merely to provide
corroboration for the standard. In Gilbert, 664 A.2d
at 242, the Supreme Court of Vermont found such
burden-shifting so unfair as to require reversal.

A related problem is the legitimization of
improper evidence through the evaluator/guardian
ad litem. In one record reviewed by this author, the
evaluator testified that the mother's family was
"manipulative" and dishonest. On cross-

examination, the evaluator conceded that as a basis
for her opinion, she was relying on unsigned written
statements provided by the father. Had the father
sought to admit these statements through himself,
they would have been viewed as hearsay, lacking
authenticity and self-serving. But admitted as they
were through the evaluator, their thrust
(manipulative/dishonest) was instead perceived as
fact. Such "fact" was then incorporated into the
court's decision; the child was removed from the
mother's primary care.

55

DIVORCE LITIGATION

With the perceived neutrality of

evaluators/guardians ad litem, their positions are often determinative.19 But as described above, evaluators/guardians ad litem are not neutral. Once they make their recommendations, they are in the position of defending them; they have conflicts of interest including concerns about their future appointments and fees.

D. Reforms

The poor quality of custody evaluations has been reported in the literature.20 Proposed reforms have ranged from making changes designed to improve their quality, to their complete elimination.21

Perhaps the most common approach has been to establish evaluation standards. In Washington State, for example, there are now court rules that require guardians ad litem to maintain documentation that substantiates their
recommendations.22 Minimum standards have also been imposed through case law. See, e.g., Patel v. Patel, 555 S.E.2d 386, 390 (S.C. 2001).23

Another approach has been to redefine the role of
the guardian ad litem as a lawyer for the child.
With this approach, the guardian ad litem does not
make a recommendation, but instead provides his
position via a brief. As noted above, this approach
is already used in some states. It is also promoted
by the ABA's "Standards of Practice for Lawyers
Representing Children in Custody Cases," which
call for the appointment of a "Best Interests
Attorney."24 The Best Interests Attorney does not
act as a witness or make reports and
recommendations.25 He files briefs and makes
arguments.26

In Wisconsin, guardians ad litem have this role.27
Professors Raven Lidman and Betsy Hollingsworth
report that these persons nonetheless function like
traditional guardians ad litem, i.e., they in effect

56

give reports and recommendations.28 A similar

phenomenon has been noted in New York. There is
a "recurring problem" that courts expect the
attorney for the child to give a recommendation.29

The concept of the Best Interests Attorney is, regardless, flawed. He represents the child's best interests, which is the ultimate issue before the court. There is the potential for the court to be usurped, or to at least not consider the evidence as carefully because he has already made the best interests determination.30

The conflicts of interest described above also continue to exist. As with a traditional guardian ad litem, the Best Interests Attorney has concerns about his future appointments and fees. Once he submits his brief, he is in the position of defending it. There are also problems with the evidence. As with a traditional guardian ad litem, the Best Interests Attorney relies on hearsay.31

E. Evaluators/Guardians ad Litem Should

be Eliminated from Child Custody

Proceedings

Another way to look at the use of
evaluators/guardians ad litem is that they act as a filter or prism between the court and the evidence.32 They are like "spin doctors." They tell the court what it sees, which can make a difference as to the court's perception.33 The court's normal decision-
making function is distorted so that children are harmed. Attorney Richard Ducote states:

[I]n domestic violence and abuse cases,

where courts are even more eager to

appoint GALS, children are frequently

ending up in 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.34


DIVORCE LITIGATION

Richard Wexler, Executive Director of the

National Coalition for Child Protection Reform,
makes a similar point regarding the CASA program:

[W]e conclude that the only real

accomplishment of CASA is to

encourage the needless removal of

children from their homes.35

The distortion of the court's decision-making
ability cannot be rectified by reforms that leave the
filter of the evaluator/guardian ad litem in place.
The only reform that will eliminate the problem of
the filter is the elimination of the filter itself.
Evaluators/guardians ad litem must be eliminated

from child custody practice.

F. Conclusion

Evaluators and guardians ad litem are often hard working and conscientious. There are, however, fundamental problems with their role. They cause the court's normal decision-making function to be distorted. Wrong decisions are made.

Court-appointed evaluator and guardians ad litem must be eliminated from child custody practice—for the sake of the children.

Endnotes

1. Margaret Dore is an attorney in private practice

in Seattle, Washington. Her published decisions
include: In re Guardianship of Stamm, 91 P.3d 126,
133 (Wash. Ct. App. 2004) (reversing due to the
improper admission of guardian ad litem
testimony), and Lawrence v. Lawrence, 20 P.3d
972, 974 (Wash. Ct. App. 2001) (use of the

"friendly parent" concept in a child custody case
"would be an abuse of discretion"). Lawrence was
nationally recognized. See, e.g., Wendy N. Davis,
Family Values in Flux, 87 ABA Journal 26

(October 2001). Ms. Dore is a former law clerk to
the Washington State Supreme Court and the
Washington State Court of Appeals. She worked
for the United States Department of Justice. She is
Vice Chair of the Elder Law Committee of the ABA
Family Law Section. She was nominated for the
2005 Butch Blum/Law & Politics "Award of
Excellence." She is a graduate of the University of
Washington School of Law. She has an M.B.A. in
Finance and a B.A. in Accounting. She passed the
C.P.A. examination in 1982. Further information
about Ms. Dore and her practice can be viewed at

www.margaretdore.com.

This article is based on: Margaret K. Dore,

Parenting Evaluators and GALs: Practical Realities, King County Bar Association, Bar Bulletin, December 1999.

2. See, e.g., Stamm, 91 P.3d at 130 ("In both

guardianship and custody cases, the role of the GAL is the same: to investigate and supply information and recommendations to the court . . .").

3. See Raven C. Lidman and Betsy R.
Hollingsworth, The Guardian ad Litem in Child
Custody Cases: The Contours of Our Judicial
System Stretched Beyond Recognition, 6 Geo.

Mason L. Rev. 255, 271, and 277, fn. 106 (1998)
(describing the guardian ad litem's role in
Wisconsin as a lawyer for the child, "they can make
arguments and file briefs, but they cannot testify
themselves nor offer new factual material in
reports").

57

DIVORCE LITIGATION

4. See, e.g., Lidman and Hollingsworth, supra at

255, fn. 2.

5. The Court Appointed Special Advocate Program (CASA) was founded by a Seattle judge. See www.nationalcasa.org/htm/about.htm. There are more than 900 CASA programs in operation

throughout the country, which are also known as Volunteer Guardian ad Litem Programs. Id.

6. See, for example, Wash. Rev. Code 26.12.177(2)(a) (2005) ("The parties may make a joint recommendation for the appointment of a "guardian ad litem . . .").

7. Cf. Margaret A. Hagen, PhD, Whores of the Court: The Fraud of Psychiatric Testimony and the Rape of American Justice, Regan Books, Chapter 8 (1997); and Higginbotham v. Higginbotham, 857 So. 2d 341, 342 (Fla. Dist. Ct. App. 2003) (fourteen psychological tests performed on parents, seven psychological tests performed on children).

8. Lidman and Hollingsworth, supra, at 278, ¶ 3.

9. A similar issue is reported in the Comments to the Washington State Superior Court Guardian ad Litem Rules, as follows:

Apparently GALs are not following statutory requirements, nor are the courts consistent in enforcing them.

GALR 2, Washington State Bar Association Comment, § (p).

10. Paul S. Appelbaum, M.D., "The Medicalization of Judicial Decision-Making", The Elder L. Rep., Vol. X, No. 7, February 1999, p. 3, ¶1, last line.

11. Richard Ducote, Guardians ad Litem in Private Custody Litigation: The Case of Abolition," 3 Loy. J. Pub. Int. L. 106, 146 (2002):

58

One of the particularly stealthy problems of

GALs is the conflict of interest issue. This
most commonly occurs when a GAL fights to
keep a child in the custody of a parent

previously endorsed and exonerated by the
GAL, despite mounting proof that the parent
is indeed abusive and the GAL erred. . . . In

such instances, GALs have forcefully opposed
the introduction of new abuse evidence and
instead have increased the blame on the non-

abusive parent. . . [T]he GAL hopes to avoid

any judicial finding that suggests his or her incompetence and jeopardizes future lucrative GAL appointments.

12. Professors Raven Lidman and Betsy
Hollingsworth make a similar point. Lidman and
Hollingsworth, supra at 302, ¶ 2. See also,

Margaret A. Hagen, supra at 207-08.

13. Cf. Lidman and Hollingsworth, supra at 279.

14. Cf. Gilbert v. Gilbert, 664 A.2d 239, 243 (Vt. 1995) (describing the guardian ad litem's facts as "double or triple hearsay when reported").

15. Id.

16. Cf. Marriage of Luckey, 868 P.2d 189, 194 (Wash. Ct. App. 1994) ("the use of profile

testimony is unfairly prejudicial"). See also, State
v. Carlson, 906 P.2d 999, 1002-03 (Wash. Ct. App.
1995):

[No] witness may give an opinion on another witness' credibility. . . . An expert opinion [on

credibility] will not "assist the trier of fact" .
. . because there is no scientific basis for such
an opinion, save the polygraph, and the

polygraph is not generally accepted as a scientifically reliable technique. (footnotes

omitted).

17. Lidman and Hollingsworth, supra at 279.

DIVORCE LITIGATION

18. Cf. Stamm, 91 P.3d at 129, quoting Fernando

v. Nieswandt, 940 P.2d 1380 (Wash. Ct. App. 1997) (the guardian ad litem acts as a "neutral advisor to the court").

19. See Lidman and Hollingsworth, supra at 297, 2d ¶ ("[m]ore often, . . . [t]he judge merely confirms the guardian ad litem's decision").

20. See, e.g., Dana Royce Baerger, et al. A
Methodology for Reviewing the Reliability and
Relevance of Child Custody Evaluations, 18 J. Am.
Acad. Matrim. Law., 35, p. 36 ("Concern regarding
the generally poor qualify of [child custody

evaluations] has prompted some commentators to
suggest an end to the use of [evaluations] in divorce
proceedings"); Timothy M. Tippins, Custody
Evaluations-Part I: Expertise by Default?, N.Y. L.
J., 7/15/03, p. 3, col. 1, Conclusion ("If the custody
recommendation is little more than a personal value,
judgment, intuition, or an educated guess, rather
than a conclusion compelled by reliable and valid
scientific research, it should not be received"); and
Lidman and Hollingsworth, supra, at 301 ("Soon
thereafter . . . [the parents] learn that this guardian
ad litem is a mere mortal getting information from
here and there, frequently not verifying anything .
. .").

21. See, e.g., Matrimonial Commission Report to
the Chief Judge of the State of New York, Hon.
Sondra Miller, Chairperson, February 2006,

(www.courts.state.ny.us/reports/matrimonialcom missionreport.pdf), p 46 ("Proposed reforms from many different sources have ranged from eliminating the use of forensics altogether to instituting changes that will insure the quality and proper use of the reports . . ."); and Ducote, supra at 115 ("Guardians ad litem must be abolished in private custody cases . . .").

22. The Superior Court Guardian ad Litem Rules
(GALR) were adopted by the Washington State
Supreme Court in 2001. See GALR § 2(p) and

http://www.courts.wa.gov/court_rules/?fa=court_

rules.list&group=sup&set=GALR.

23. See also, Stamm, 91 P.3d at 130 (limiting the admissibility of guardian ad litem testimony to that which is helpful under ER 702); and Heistand v. Heistand, 673 N.W.2d 531, 311-12 (Neb. 2004) (reversing because the guardian ad litem had been allowed to testify as an expert).

24. The Best Interests Attorney" is defined as a
"lawyer who provides independent legal services
for the purpose of protecting a child's best interests,
without being bound by the child's directives or
objectives." American Bar Association Section of
Family Law Standards of Practice for Lawyers
Representing Children in Custody Cases, p. 2, §
II.B. (Approved by the American Bar Association
House of Delegates, August 2003)

(http://www.afccnet.org/pdfs/aba.standards.pdf#s
earch='ABA%20Standards%20of%20Practice%2
0for%20Lawyers%20Representing%20Children').

25. Id., p. 3, § III.B.

26. Id., p. 6, § III.G.

27. Lidman and Hollingsworth, supra at 271, and
277, fn. 106 (describing the guardian ad litem's role
in Wisconsin as a lawyer for the child, "they can
make arguments and file briefs, but they cannot
testify themselves nor offer new factual material in
reports").

28. Lidman and Hollingsworth state:

The Wisconsin courts' opinions have an
exasperated tone as they repeatedly reiterate
that these guardians ad litem must perform

lawyer-like functions: they can examine and
cross-examine witnesses, and they can make
arguments and file briefs, but they cannot

testify themselves nor offer new factual
material in reports. Trial courts, parents'

59

DIVORCE LITIGATION

attorneys, and guardian ad litem-lawyers have

been chastised for "lapses" such as:

permitting the guardian ad litem to file a
"report" twenty days after the close of trial; or
allowing the guardian ad litem to file a

preliminary report and make an oral report to
the court after closing arguments. But
Wisconsin appellate courts do not reverse for

these lapses. Instead the reviewing courts characterize preliminary reports as briefs and
oral reports as arguments. (Footnotes

omitted).

Lidman and Hollingsworth, supra at 271.
29. Matrimonial Commission Report, supra at 43.

30. Cf. C.W. v. K.A.W., 774 A.2d 745, 749 (Pa.
2001) (the trial court's reliance on the guardian ad
litem constituted "egregious examples of the trial
court delegating its judicial power to a non-judicial
officer"); and Hastings v. Rigsbee, 875 So. 2d 772,
777 (Fla. Dist. Ct. App. 2004) ("The overarching
problem in this case is that the trial court effectively

60

delegated its judicial authority to the parenting

coordinator").

31. See e.g., ABA Standards of Practice, supra at § V.E.

32. Cf. Small Justice: Little Justice in America's
Family Courts, Education Supplement, p. 6,

Intermedia Inc., Seattle WA 2001 (describing

evaluators and guardians ad litem as a filter). See also http://www.intermedia-inc.com/title.asp?sku= SM03&subcatID=29.

33. Id.

34. Ducote, supra at 135-36 (footnote omitted).

35. National Coalition for Child Protection
Reform, press release, p. 1

(http://www.law.capital.edu/adoption/news_cases/ documents/NATIONAL_COALITION_response. pdf#search='Caliber%20%26%20Wexler%20%26 %20CASA%20%26%202122006'); see also

http://www.nccpr.org/.

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