1. THE COURT'S ROLE IN LAWYER TRAINING
I-1. Judicial Involvement in Lawyer Training
Trial judges who are regularly involved in child-related matters should participate in training for the child's attorney conducted by the courts, the bar, or any other group.
Commentary
Juvenile Justice Standards 2.1 indicates that it is the responsibility of the courts (among others) to ensure that competent counsel are available to represent children before the courts. That Standard further suggests that lawyers should "be encouraged" to qualify themselves for participation in child-related cases "through formal training." The Abuse and Neglect Standards go further by suggesting that judges should personally take part in educational programs, whether or not the court conducts them. The National Council of Juvenile and Family Court Judges has suggested that courts can play in important role in training lawyers in child abuse and neglect cases, and that judges and judicial officers can volunteer to provide training and publications for continuing legal education seminars. See, Resource Guidelines, at 22.
I-2. Content of Lawyer Training
The appropriate state administrative office of the trial [alternatively, juvenile/family] courts should provide educational programs, live or on tape, on the role of a child's attorney. At a minimum, the requisite training should include:
1. Information about relevant federal and state laws and agency regulations;
2. Information about relevant court decisions and court rules;
3. Overview of the court process and key personnel in child-related litigation;
4. Description of applicable guidelines and standards for representation;
5. Focus on the child development needs and abilities;
6. Information on the
multidisciplinary
input required in child-related cases, including
information on local experts who can provide
consultation and testimony on the
reasonableness and appropriateness of efforts
made to safely maintain the child in
his or her home;
7. Information
concerning
family dynamics and dysfunction including substance abuse,
and the use of kinship care;
8. Information
on accessible child welfare, family preservation, medical, educational,
and mental health resources for child clients
and their families, including placement,
evaluation/diagnostic, and treatment services;
the structure of agencies providing
such services as well as provisions and
constraints
related to agency payment for
services; and
9. Provision of
written material
(e.g., representation manuals, checklists, sample forms),
including listings of useful material
available
from other sources.
Commentary
The Abuse and Neglect Standards take the position that it is not enough that judges mandate the training of lawyers, or that judges participate in such training. Rather, they call upon the courts to play a key role in training by actually sponsoring (e.g., funding) training opportunities. The pivotal nature of the judiciary's role in educating lawyers means that courts may, on appropriate occasions, stop the hearing of cases on days when training is held so that both lawyers and judges may freely attend without docket conflicts. The required elements of training are based on a review of well-regarded lawyer training offered throughout the country, Resource Guidelines, and many existing manuals that help guide lawyers in representing children.
I-3. Continuing Training for Lawyers
The court system should also assure that there are periodic opportunities for lawyers who have taken the "basic" training to receive continuing and "new developments" training.
Commentary
Many courts and judicial organizations recognize that rapid changes occur because of new federal and state legislation, appellate court decisions, systemic reforms, and responses to professional literature. Continuing education opportunities are critical to maintain a high level of performance. These Standards call for courts to afford these "advanced" or "periodic" training to lawyers who represent children in abuse and neglect related cases.
I-4. Provision of Mentorship Opportunities
Courts should provide individual court-appointed lawyers who are new to child representation the opportunity to practice under the guidance of a senior lawyer mentor.
Commentary
In addition to training, particularly for
lawyers
who work as sole practitioners or in firms that do not specialize in
child
representation, courts can provide a useful mechanism to help educate
new
lawyers for children by pairing them with more experienced advocates.
One
specific thing courts can do is to provide lawyers new to representing
children with the opportunity to be assisted by more experienced
lawyers
in their jurisdiction. Some courts actually require lawyers to "second
chair" cases before taking an appointment to a child abuse or neglect
case.
See, Resource Guidelines, at 22.
A. DEFINITIONS
A-1. The Child's Attorney
The term "child's attorney" means a lawyer who provides legal services for a child and who owes the same duties of undivided loyalty, confidentiality, and competent representation to the child as is due an adult client.
Commentary
These Standards explicitly recognize that the child is a separate individual with potentially discrete and independent views. To ensure that the child's independent voice is heard, the child's attorney must advocate the child's articulated position. Consequently, the child's attorney owes traditional duties to the child as client consistent with ER 1.14(a) of the Model Rules of Professional Conduct. In all but the exceptional case, such as with a preverbal child, the child's attorney will maintain this traditional relationship with the child/client. As with any client, the child's attorney may counsel against the pursuit of a particular position sought by the child. The child's attorney should recognize that the child may be more susceptible to intimidation and manipulation than some adult clients. Therefore, the child's attorney should ensure that the decision the child ultimately makes reflects his or her actual position.
A-2. Lawyer Appointed as Guardian Ad Litem
A lawyer appointed as "guardian ad litem" for a child is an officer of the court appointed to protect the child's interests without being bound by the child's expressed preferences.
Commentary
In some jurisdictions the lawyer may be appointed as guardian ad litem. These Standards, however, express a clear preference for the appointment as the "child's attorney." These Standards address the lawyer's obligations to the child as client and not the lawyer's obligation to the child as guardian ad litem.
A lawyer appointed as guardian ad litem is almost inevitably expected to perform legal functions on behalf of the child. Where the local law permits, the lawyer is expected to act in the dual role of guardian ad litem and lawyer of record. The chief distinguishing factor between the roles is the manner and method to be followed in determining the legal position to be advocated. While a guardian ad litem should take the child's point of view into account, the child's preferences are not binding, irrespective of the child's age and the ability or willingness of the child to express preferences. Moreover, in many states, a guardian ad litem may be required by statute or custom to perform specific tasks, such as submitting a report or testifying as a fact or expert witness. These tasks are not part of functioning as a "lawyer."
These Standards do not apply to nonlawyers when such persons are appointed as guardians ad litem or as "court appointed special advocates" (CASA). The nonlawyer guardian ad litem cannot and should not be expected to perform any legal functions on behalf of a child.
A-3. Developmentally Appropriate
"Developmentally appropriate" means that the child's attorney should ensure the child's ability to provide client-based directions by structuring all communications to account for the individual child's age, level of education, cultural context, and degree of language acquisition.
Commentary
The lawyer has an obligation to explain
clearly,
precisely, and in terms the client can understand the meaning and
consequences
of action. See David A. Binder & Susan C. Price, Legal Interviewing
and Counseling: A Client-Centered Approach (1977). A child client may
not
understand the legal terminology and for a variety of reasons may
choose
a particular course of action without fully appreciating the
implications.
With a child the potential for not understanding may be even greater.
Therefore,
the child's attorney has additional obligations based on the child's
age,
level of education, and degree of language acquisition. There is also
the
possibility that because of a particular child's developmental
limitations,
the lawyer may not completely understand the child's responses.
Therefore,
the child's attorney must learn how to ask developmentally appropriate
questions and how to interpret the child's responses. See Anne Graffam
Walker, Handbook on Questioning Children: A Linguistic Perspective (ABA
Center on Children and the Law 1994). The child's attorney may work
with
social workers or other professionals to assess a child's developmental
abilities and to facilitate communication.
SENATE, No. 1828
The Commonwealth of Massachusetts In the Year Two Thousand.GUARDING OUR
CHILDREN:
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PRE-SERVICE TRAINING CURRICULUM GUARDIAN AD LITEM MANUAL Prepared by |
SECTION
E:
THE EFFECTS UPON CHILDREN OF
DOMESTIC
VIOLENCE
Studies have repeatedly shown that children who are exposed to domestic violence display an increased level of distress in comparison to those children who have not been exposed to domestic violence. The degree of impairment is directly related to the level of violence experienced, as well as the child's age at the time of abuse. As we will see in this section, children who have witnessed domestic violence are very similar to children who have been direct victims of abuse.
The following scenarios may seem extreme but, in fact, they are all too common:
·A seven year old boy, fearing for his mother's safety, jumps from a second story window to get help. When the police arrive they find a neighbor stabbed and the boy's mother seriously injured by the mother's ex-spouse.
·A ten year old girl tries to physically break up her parents' fight. She is thrown from the fight and hits the radiator. As a result one of her vertebrae breaks and she is paralyzed from the waist down.
GUARDIAN AD LITEM MANUAL PAGE 57 UNIT 7: DYNAMICS OF ABUSE AND VIOLENCE
Violence between the adult partners in a home is a reality that can not be ignored. An even greater need is to understand and realize the impact of such violence on child witnesses.
Children may be affected by family violence in any of the following ways. Keep in mind that you should look for a combination of behaviors, extremes or repeated behaviors.
BEHAVIORAL
•
Acting out or withdrawn
•
Overachieving or underachieving
•
Refusing to go to school (afraid to leave home because they feel they
need
to stay at home to take care of things)
•
Caretaking (filling adult roles)
•
Aggressive or passive
•
Very rigid defenses
•
Constantly seeking attention, often labeled ADHD
•
Bedwetting
•
Nightmares
•
Difficult to set limits
•
Hitting adults
•
Pre-delinquent and delinquent
•
Limited tolerance
•
Developmental regression
EMOTIONAL
•
Guilt
•
Shame
•
Fear
•
Anger
•
Confusion
•
Depressed
•
Burdened
•
Grief
•
Insecure
PHYSICAL
•
Somatic complaints (i.e., headaches, stomach aches)
•
Nervous, anxious
•
Short attention span
•
Tired, lethargic (seems lazy)
•
Often sick
•
Neglectful of personal hygiene
•
No reaction, at times, to physical pain
SOCIAL
•
Isolated; few friends
•
Overly social
•
Relationships with playmates may start with great intensity and end
abruptly
•
Difficulty in trusting others
•
Poor conflict resolution skills
•
Unwilling to share or compromise
•
May be passive or bullying with playmates
•
Unclear sense of boundaries
•
Poor image or anything that is stereotypically female
GUARDIAN AD LITEM MANUAL PAGES 58 - 59 UNIT 7: DYNAMICS OF ABUSE AND VIOLENCE
WORKING WITH VICTIMS AND ABUSERS
As a GAL you will hear very conflicting sides of the story when you work with families experiencing domestic violence. Often the abuser is very cooperative -- remember that this person generally starts out a relationship with charm. This is not much different than the child who is growing up in an abusive home who initiates play relationships with great intensity and then the relationships end abruptly. It is not surprising that the majority of abusers grew up in homes where there was abuse. On the other hand, the victim may be less cooperative and may present herself or himself poorly. For the victim who is in court fighting over custody and visitation, all of her/his fears of loosing the children feel like they will come true. Keep in mind that the abuser has told the victim that no one will believe him/her.
We also need to understand how traumatic this experience can be for the child, especially when the child has also been threatened. For example, the father of one eight-year-old child threatened to kill the child if he spoke even one word about the abuse. The child in turn elected to become mute rather than risk loosing his life. It took six months of therapy before this child shared a few words.
As we will discuss later, it is important that you present yourself as a neutral individual; involved only to determine what is in the best interest of the child. If the victim or the abuser feel that you are spending more time with the other partner, you will find your job more complicated.
When making recommendations in cases involving domestic violence, it is important to remember that in general joint custody arrangements do not work well in families that have a history of domestic violence. When determining a visitation schedule, consider the following items:
·The
safety of the victim and children.
·Assess
how lethal the situation may be for the victim and children.
·Whether
the victim will remain safe when the children are transferred from one
residence to the other.
·Whether
visits should be suspended or supervised? Does your community have a
supervised
visitation center?
·What
safety plan has been developed for the victim and children; are the
children
old enough to comprehend and respond to a safety plan?
·Has
the abuser taken responsibility for his or her behavior?
·How
have the children responded to the violence; what is their level of
fear
or anxiety regarding visitation with the abuser?
·Is
there a risk of parental abduction?
GUARDIAN AD LITEM MANUAL PAGE 61 UNIT 7: DYNAMICS OF ABUSE AND VIOLENCE
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Who Should the GAL interview?
In your role as a GAL, you are expected to collect and
review information
on the case. In the course of collecting information you will want to
talk
with a number of individuals who have information about the child. In
this
section, we will identify the individuals you will most likely meet in
the course of researching a case.
· We will discuss the reasons you would have for meeting and interviewing these individuals.
· We will also discuss the kind of information
various professionals
can provide about the child and the kind of information you may need to
share with them.
The most obvious person you would interview is the child
or children
in the case. You will also interview professionals on the case,
including:
· DCF Protective Investigators
· DCF Protective Service Counselor
· Foster Care Counselors
· Attorneys
· Foster Parents, if the child is out of the home.
· Teachers
· Medical Personnel
· Psychologists/Psychiatrists
· Day care Providers
· Law Enforcement
Other people who know the child should be interviewed,
such as:
· Parents
· Siblings
· Legal guardians
· Extended family members
· Friends
Guardian Ad Litem Program
State of Florida, Fifth Judicial Circuit
Who Can Be a Guardian Ad Litem?
Any person who has common sense and good judgment can be a Guardian Ad Litem! A GAL does not have to be a lawyer, counselor, therapist or parent, since he/she does not perform these roles for the child. A volunteer Guardian Ad Litem should be a person who has perhaps dealt with crisis in his/her own life, and is capable of helping a child in crisis. He/she should be a person who CARES... and is able to give TIME to help a child. A Guardian Ad Litem volunteer may have to "think outside the lines." Volunteers will be matched with children depending on how much time they are able to give, the seriousness of the case, and the backgrounds of the volunteer and the child. Cases usually require from two to ten hours of time per week.
Email
questions or comments about the ORIGINAL web site to webserf@guardianadlitem.org.
They gave thanks to Voices for Children of North Central Florida,
Inc., for its financial support.
Guardian Ad Litem Program
State of Florida, Fifth Judicial Circuit
What do they do?
Information Gatherer The GAL's "investigative" function is more properly described as independent fact finder, information gatherer, or observer. The GAL can be expected to gather information about the child's current situation (as opposed to the allegations in the petition) by interviewing the child, parents, relatives and/or friends, school personnel, and professionals with whom the child has contact. The Guardian Ad Litem can gather reports and written records pertaining to the child and his family. It also may be useful for the GAL to observe the child's interactions with the significant others in his life and report those observations to the court. Finally the GAL can provide invaluable information about the past responses of both the child welfare system and the court system with regards to the needs of the child.
Monitor
The Guardian Ad Litem serves as monitor of the agencies and persons who are responsible for providing services to the child and his family. The volunteer assures that court orders to protect and benefit the child are carried out and that the families and the child receive the assistance and intervention that have been mandated. Throughout the duration of the case, the GAL should also monitor the appropriateness of the child's placement and the parent(s)'s compliance with the case plan. In short, the GAL has an opportunity to be a monitor of both the parents' and the systems' responses to the child's needs and ensure that all "player" are acting in that child's best interests. The GAL's effectiveness as a monitor depends on his ability to bring his observations before the court and persuade the court that changes should be made or orders should be enforced. A monitor without the ability to effectuate modifications or enforcement of existing responsibilities and obligations is ineffective. Sometimes, the lay volunteer may require legal assistance in order to function effectively. The description of the Guardian Ad Litem as the "eyes and ears of the court" is a reflection of the GAL's monitoring role.
Spokesperson
The Guardian Ad Litem speaks on behalf of the best interests of the child before the court and before agencies who are charged with responsibility for meeting the needs of the child and his family. This role is at the heart of court advocacy. Under current Florida law, there are several instances where the GAL's participation in court and agency proceedings is expressly authorized. Based on a review of the child's current situation, the Guardian Ad Litem forms an opinion about what actions and alternatives are available to judicial and child welfare officials that will serve and protect the child's best interests -- including ways to protect the child's physical safety and emotional well-being, opportunities for permanent placement in a nurturing hone that will protect the child from further harm by virtue of the child's involvement in either the legal or child welfare system. The GAL then informs the court of the child's needs and makes recommendations that will serve that child's best interests.
Reporter
The Guardian Ad Litem reports to the court information gathered from observing and talking with the child; interviewing parents or guardians, relatives, and others who have contact with the child; and consulting with professionals about the child. The GAL also offers recommendations about how the judicial and child welfare systems can assure that the child's best interests will be met. The Guardian Ad Litem's reports become a permanent part of the court record.
Service Broker
The Guardian Ad Litem assists in identifying service resources and programs that may address the child's needs. Frequently, this function involves the coordination of services, which may or may not be court ordered and the solicitation of support from community organizations. The GAL can convene multidisciplinary staffing that are attended by parents, doctors, mental health counselors, school teachers, specialist and social service providers to ensure that all agencies/entities who serve the child are providing necessary and timely services. The Guardian Ad Litem has the comprehensive outlook on the needs of the child and is able to make certain that there is no gap or overlap in service provision. If the GAL identifies services that the child needs which cannot be secured without a court order, the GAL will make a recommendation for those services to the court.
Email
questions or comments about the ORIGINAL web site to webserf@guardianadlitem.org.
They gave thanks to Voices for Children of North Central Florida,
Inc., for its financial support. .
Standards
with Comments for Guardians Ad Litem in
Missouri Juvenile and Family Court Matters
The following is the complete text of an Order entered by the Supreme Court of Missouri en banc on September 17, 1996, establishing standards for GALs in Missouri courts. (HTML links have been added to assist with navigation of the document.)
Order dated 9/17/96
Standard 1.0 Appointment of Guardians ad
litem.
Standard 2.0 Independent Judgment of Guardian
ad litem.
Standard 3.0 Faithful Performance of Duties.
Standard 4.0 Volunteer Advocates.
Standard 5.0 Guardian ad litem Access to
Child.
Standard 6.0 Guardian ad litem Access to
Reports
and Records.
Standard 7.0 Confidentiality.
Standard 8.0 The Court Process.
Standard 9.0 Relating the Court Process to
the
Child.
Standard 10.0 Participation in Proceedings
Outside
the Courtroom.
Standard 11.0 Participation in Court
Proceedings.
Standard 12.0 Protecting the Child as Witness.
Standard 13.0 Conflicts of Interest.
Standard 14.0 Recommendations to the Court.
Standard 15.0 Court Orders.
Standard 16.0 Training of Guardian ad litem.
SUPREME COURT OF MISSOURI
en banc
September 17, 1996
In re Standards with Comments for
Guardians
Ad Litem
in Missouri Juvenile and Family Court
Matters.
ORDER
1. The attached standards are hereby approved.
2. The
courts
administrator is directed to provide a copy of the attached standards to
each presiding circuit
judge
and each administrative judge of the family court
division.
Day-to-Day
/s/ JOHN
C. HOLSTEIN
Chief
Justice
STANDARDS with COMMENTS
for
GUARDIANS AD LITEM
in
MISSOURI JUVENILE and FAMILY COURT MATTERS
STANDARD 1.0 Appointment of Guardians ad litem
Only a lawyer licensed by the Supreme Court of Missouri and, when authorized by law, a court appointed special advocate volunteer sworn in as an officer of the court shall be appointed to act as a guardian ad litem for a child. The guardian ad litem shall be appointed not later than the first proceeding at which a guardian ad litem is required by law and shall remain involved until the matter in which the guardian in ad litem is appointed is concluded or as otherwise ordered by the court.
COMMENT: Courts may appoint either a lawyer or a court appointed special advocate volunteer to serve as guardian ad litem in accordance with Missouri law in juvenile matters, family court matters, and domestic relations matters, as set forth in chapters 210, 211, 452, 453, 455, RSMo.
Missouri children deserve quality guardian ad litem representation, whether by a lawyer, or a volunteer. To ensure the best possible guardian ad litem services, there needs to be clarity and consistency in defining the role and responsibilities of the guardian ad litem. To perform his or her duties effectively, the guardian ad litem requires knowledge of the role, understanding of the court's expectations, and knowledge of the criteria used to judge his or her performance.
STANDARD 2.0 Independent Judgment of Guardian ad litem
A guardian ad litem, whether a lawyer or a volunteer, shall be guided by the best interests of the child and shall exercise independent judgment on behalf of the child in all matters.
COMMENT: Although the parties are interested in the child's well-being, they are not necessarily focused on the best interests of the child. The guardian ad litem therefore, (1) must recommend only what is in the best interests of the child on each issue, and (2) must maintain an objectivity that preserves a clear focus on the child's best interests.
The roles of a guardian ad litem and a lawyer for the child are different and must be clearly distinguished. A lawyer guardian ad litem is not the lawyer for the child and, therefore, advocates the best interests of the child rather than merely representing the child's preferences.
STANDARD 3.0 Faithful Performance of Duties
The court shall assure that the guardian ad litem maintains independent representation of the best interests of the child. The court shall require the guardian ad litem to perform the guardian ad litem duties faithfully and, upon failure to do so, shall discharge the guardian ad litem and appoint another.
COMMENT: The guardian ad litem should relate to the child according to the child's stage of development and understand the child's sense of time in relation to his or her age. The guardian ad litem should conduct regular face-to-face meetings with the child, which will allows the guardian ad litem to observe the child's physical, mental, social, educational and familial well-being and to form opinions concerning the underlying cause of any developmental disturbances the child may exhibit. The guardian ad litem shall not diagnose or work therapeutically with the child, but regular, face-to-face contact will ensure informed observations when conferring with other specialists.
STANDARD 4.0 Volunteer Advocates
If the court appoints a court appointed special advocate volunteer, the services of a lawyer shall be obtained by the volunteer program supporting the volunteer when the volunteer has need for legal advice and assistance.
COMMENT: Volunteers, trained and supervised by court appointed special advocate programs and sworn in as officers of the court, may be appointed to serve as guardians ad litem in certain designated cases. When a volunteer serves as a guardian ad litem a lawyer must be available to represent and, where appropriate, advise the volunteer.
STANDARD 5.0 Guardian ad litem Access to Child
The guardian ad litem shall not be unduly restricted in access to the child by any agency or person. The guardian ad litem should meet with the child in the child's placement as often as necessary to determine that the child is safe and to ascertain and represent the child's best interests.
COMMENT: Every child should have a guardian ad litem who is objective and independent and aware of and knowledgeable about the child's particular situation.
STANDARD 6.0 Guardian ad litem Access to Reports and Records
Unless otherwise provided by law, the guardian ad litem shall be provided, upon request, with all reports relevant to the case made to or by any agency or any person and shall have access to all relevant records of such agencies or persons relating to the child or the child's family members or placements of the child.
COMMENT: Except as otherwise provided by law, the guardian ad litem must have complete access to all information related to the child and the child's situation. See 210.160.2, RSMo.
STANDARD 7.0 Confidentiality
A guardian ad litem shall observe all statutes, rules and regulations concerning confidentiality. A guardian ad litem shall not disclose information or participate in the disclosure of information relating to an appointed case to any person who is not a party to the case, except as necessary to perform the guardian ad litem duties or as may be specifically provided by law.
COMMENT: The guardian ad litem, whether a lawyer or a volunteer, shall comply with all appropriate codes of ethics and conduct regarding confidentiality.
STANDARD 8.0 The Court Process
The guardian ad litem will review the progress of a child's case through the court process , and advocate for timely hearings.
COMMENT: The harmful effects of prolonged foster care and lack of permanency planning for children are serious and well documented. Foster Children in the Courts, edited by Mark Hardin, 1983.
STANDARD 9.0 Relating the Court Process to the Child
The guardian ad litem will explain, when appropriate, the court process and the role of the guardian ad litem to the child. The guardian ad litem will assure that the child is informed of the purpose of each court proceeding. The guardian ad litem will assure the child that the child's opinions and feelings will be made known to the court even when not consistent with the recommendations of the guardian ad litem.
COMMENT: To decrease the trauma to the child from attending court hearings, depositions and other proceedings, the guardian ad litem shall explain to the child what is happening and what is expected of the child in all proceedings involving the child.
STANDARD 10.0 Participation in Proceedings Outside the Courtroom
The guardian ad litem shall participate in the development and negotiation of any plans, orders aid staffings that affect the best interests of the child.
The guardian ad litem shall monitor implementation of service plans and court orders to determine whether services ordered by the court are being provided in a timely manner.
COMMENT: The guardian ad litem should be present and participate in staffings and meetings that impact the life of the child, including, but not limited to, permanency planning review team meetings and staffings within the educational and mental health settings.
STANDARD 11.0 Participation in Court Proceedings
The guardian ad litem shall appear at all proceedings to represent the child's best interests. As authorized by law the guardian ad litem may present evidence and ensure that, where appropriate, witnesses are called and examined, including, but not limited to, foster parents and psychiatric, psychological, medical, or other expert witnesses.
In the event any new developments or significant changes in the child's circumstances occur during the pendency of the court process, the guardian ad litem may cause appropriate pleadings to be filed.
COMMENT: The guardian ad litem should be present at all court proceedings involving the child, which may include depositions and other pre-trial proceedings.
STANDARD 12.0 Protecting the Child as Witness
The guardian ad litem in a pending case shall protect the interests of the child who is a witness in any judicial proceeding relating to the case in which the guardian ad litem has been appointed. The guardian ad litem shall explain, when appropriate, the court proceedings and process to the child.
COMMENT: The guardian ad litem must protect the child from multiple depositions and repetitive examinations that are not in the child's best interests. The guardian ad litem shall request that all parties give notice of any related proceedings or meetings involving the child and for any proposed contact between counsel for a party and a child. In matters for which the guardian ad litem is appointed, the guardian ad litem shall be present during any conferences between counsel for a party and the child.
STANDARD 13.0 Conflicts of Interest
If it is determined that the recommendations of the guardian ad litem are not in agreement with the wishes of the child, the court shall be informed by the guardian ad litem. Whenever the court believes that it is appropriate, the court shall discharge the guardian ad litem and appoint another.
COMMENT: There must be no conflict of interest that makes it difficult for the guardian ad litem to present recommendations that are consistent with the child's best interests. At any time during the proceedings in order to avoid a conflict of interest, the guardian ad litem, whether a lawyer or a volunteer, must inform the court of the child's preferences even though different from his or her recommendations. The court has discretion to decide whether the differences between the child's preferences and the guardian ad litem's recommendations create such a conflict of interest that a new guardian ad litem should be appointed.
STANDARD 14.0 Recommendations to the Court
The guardian ad litem shall present recommendations to the court on the basis of the evidence presented and provide reasons in support of these recommendations. When authorized by law, the guardian ad litem may offer evidence to the court. If the guardian ad litem testifies, the guardian ad litem shall be duly sworn as a witness and be subject to cross-examination.
COMMENT: The guardian ad litem shall ensure the court's receipt of independent, objective information. To make a decision that serves the child's best interests, the court must have knowledge of the child's circumstances from all sources including the parents, caseworker, and deputy juvenile officer. If the guardian ad litem has information that he or she believes to be relevant from his or her own independent investigation, the guardian ad litem should testify.
STANDARD 15.0 Court Orders
The guardian ad litem should request orders that are clear, specific, and, where appropriate, include a time line for the assessment, services, placement, treatment and evaluation of the child and the child's family.
COMMENT: All court orders should clearly reflect the requirements and expectations of each party so that stability for the child is achieved as soon as possible.
STANDARD 16.0 Training of Guardian ad litem
No person shall be appointed as guardian ad litem without first completing twelve hours of specialized training. Thereafter, to continue to be appointed as a guardian ad litem a person shall complete six hours of specialized training annually. Completion of the training hours shall be evidenced by an affidavit filed with the appointing court by July 31 of each year. The court may accept, in lieu of the initial twelve hours of specialized training, an equivalent number of hours experience as a guardian ad litem prior to the effective date of the adoption of these standards.
The specialized training shall include, but is not limited to, the following topics:
1. Dynamics of child abuse and neglect issues
2.
Factors
to consider in the determining the best interest of the child, including
permanency planning
3. Inter-relationships between family system, legal process and the child welfare system
4. Mediation and negotiation skills
5. Federal, state and local legislation and case law affecting children
6. Cultural and ethnic diversity and gender-specific issues
7. Family and domestic violence issues
8. Available community resources and services
9. Child development issues
10. Guardian ad litem standards
Programs providing guardian ad litem training to meet the provisions of this standard shall be accredited by the Supreme Court of Missouri's judicial education committee.
COMMENT: Guardian ad litem practice is unique and complex and, as such requires special education, training and experience. The guardian ad litem needs an understanding of family dynamics and child development in order to evaluate observed and reported behaviors. The guardian ad litem must interpret lengthy case information, which may include references to stress and abuse syndromes, physical determinations of abuse, causal factors in abuse and neglect, and the concepts of treatment designed to address abusive behaviors. The guardian ad litem must be able to understand these references and see how determinations of probable cause are developed, how and why treatment programs are prescribed, and how to incorporate these references into his or her recommendations for the best interest of the child.
The guardian ad litem is not expected to make diagnostic or therapeutic recommendations but is expected to provide an information base from which to draw resources. Therefore, the guardian ad litem must have a working knowledge of family dynamics and be able to compare and relate this concept to the observations, reports and documentation received regarding the child and the child's family.
This page was created from public records by Chuck Bennett using PaperPort scanner and OCR software and the HotDog HTML editor from Sausage Software. Please feel free to print, copy, download, link and otherwise use or share this document.
More About This Course
CLE Accreditation:
7.3 Missouri MCLE hours.
0.5 Ethics hours.
Kansas credit applied for.
Course Description
On September 17, 1996, the Missouri Supreme Court approved standards for Guardians Ad Litem in Missouri. For courts adopting the standards, Guardians Ad Litem will be required to complete twelve hours of specialized training initially, followed by six hours of specialized training each year. This program satisfies the six-hour specialized training requirement. Standard 2.0 for Guardians ad Litem as promulgated by the Supreme Court of Missouri in 1996 provides that GALs "shall be guided by the best interests of the child and shall exercise independent judgment on behalf of the child in al matters." This program will provide a forum for education on and discussion of what it means to exercise "independent judgment," both legally and ethically, and to provide the tools necessary to help the Guardian ad Litem fulfill this standard in "the real world."
The Missouri Bar, P.O. Box 119, Jefferson City, MO 65102-0119
Central Missouri Child Advocacy Law
Center
Guidelines for Children's Attorneys
This is a listing of various state guidelines and standards for GALs and attorneys representing children or parents in child abuse/neglect cases. This listing includes links to materials available online as well as information for ordering printed materials by mail. If anyone knows of materials that should be included here but are not, please e-mail me.
Guidelines and Standards Available Online
Missouri Supreme Court Standards for
Guardians
Ad Litem
ABA Guidelines for Representation of Children
in Abuse/Neglect Cases
Michigan Guidelines For Advocates For Children
Virginia Standards to Govern the Appointment
of Guardians Ad Litem
West Virginia: Guidelines for Guardians AD
Litem
in Abuse and Neglect Cases
Guidelines and Standards Available in Printed Form by Mail
Most of the information about ordering printed materials was provided by Eva Klain (KlainE@staff.abanet.org), Associate Director of the Court Improvement Project at the ABA Center on Children and the Law. Many thanks to Ms. Klain for her permission to post the material here in HTML format.
American Bar Association - Child's
Attorney; Parents'
Attorney
National CASA Association - Child's Guardian
Ad Litem (or CASA)
California - Child's Attorney
Colorado - Child's Attorney
Minnesota - Child's Guardian Ad Litem
Missouri - Child's Guardian Ad Litem
New York - Child's Attorney
Oregon - Child's Attorney; Parents' Attorney
Vermont - Parents' Attorney
West Virginia - Child's Attorney
Guidelines for Children's Attorneys
The 1996 ABA Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases can be ordered directly from the ABA Center for Children and the Law (202/662-1743) for $3.00 (includes S&H) or downloaded from the Center's web site: http://www.abanet.org/child.
New York adopted standards in 1988. They can be ordered from the New York Bar Association, One Elk Street, Albany, NY 12207. A summary also appears in the March 1993 issue of the ABA Juvenile and Child Welfare Law Reporter (call 1-800-285-2221 or write to the ABA Customer Service Center, 750 N. Lake Shore Drive, Chicago, IL 60611; be sure to specify the March 1993 issue).
Colorado's standards are available from the National Association of Counsel for Children, 1205 Oneida St., Denver, CO 80220 (303/321-3963). They are also summarized in the March 1993 issue of the ABA Juvenile and Child Welfare Law Reporter (call 1-800-285-2221 or write to the ABA Customer Service Center, 750 N. Lake Shore Drive, Chicago, IL 60611; be sure to specify the March 1993 issue).
The West Virginia Supreme Court of Appeals approved written guidelines for guardians ad litem in abuse and neglect cases, which can be found in the case In Re Jeffrey R.L., 435 S.E.2d 162, 173-180 (1993).
The Missouri Supreme Court recently released new standards for GALs. Copies can be obtained by sending $3.25 to the Supreme Court Library, PO Box 448, Jefferson City, MO 65102, or you can view and download them at http://www.rollanet.org/~childlaw/galstd/mogalstd.htm.
In California, Rule of Court 1438, pursuant to California Welfare and Institutions Code section 317.6 subdivision (b), requires that each county develop Local Rules for Attorney Standards, Education and Training. Eva Klain has copies of the Rules from San Diego, and hopes to have copies from San Francisco, Los Angeles and other jurisdictions soon. You can obtain copies by calling the administrative office of the Superior Court of the county in which you're interested.
Also, the Northern California Association of Counsel for Children (NCACC) developed model local rules. For more information contact the National Center for Youth Law, 114 Sansome Street, Suite 905, San Francisco, CA 94104-3820 (415/543-3307; fax 415/956-9024).
In 1991-92, the National CASA Association developed "Roles and Responsibilities" for guardians ad litem that apply to either attorneys or non-attorneys serving in that capacity. The outlined duties were endorsed by the National Council of Juvenile and Family Court Judges. They can be obtained from the National CASA Association at 100 West Harrison Street, North Tower, Suite 500, Seattle, WA 98119-4123 (206/270-0072; 800/628-3233; fax 206/270-0078).
The Minnesota Supreme Court's Advisory Task Force on the Guardian Ad Litem System has produced a detailed Final Report with a review of current Minnesota procedures, deliberations and recommendations of the Task Force, proposed Rules, and appendices with comments on possible alternative rules. The Task Force's Final Report is available from the Minnesota Supreme Court Research and Planning Office, 25 Constitution Avenue, Suite 120, St. Paul, MN 55155, or by contacting staff attorney Judith C. Nord at 612-282-3972 or judy.nord@courts.state.mn.us.
Guidelines for Parents' Attorneys
The ABA's "Representing Parents in Child Protection Cases: A Basic Introduction for Attorneys" is available from the ABA Center for Children and the Law for $3.00 by calling 1-800-285-2221.
Vermont has produced a state-specific version, which unfortunately may be out-of-date and out-of-print. Eva Klain is seeking more information on this, which will be posted as soon as she provides it to me.
Copies of the Oregon Indigent Defense Task Force Report on Principles and Standards for Counsel in Criminal, Delinquency, Dependency and Civil Commitment Cases are available from the Oregon State Bar, 5200 SW Meadows Road, PO Box 1689, Lake Oswego, OR 97035 (503/620-0222; fax 503/684-1366).
The original page was created by Chuck Bennett.
NEW HAMPSHIRE
GUARDIANS AD LITEM
41. CERTIFICATION. The court may appoint as a guardian ad litem only an individual who has become certified according to the protocol approved by the supreme court on December 15, 1994.
Reports filed by guardians ad litem in domestic relations cases involving custody, custodial rights, or visitation arrangements for any minor child shall be placed in an envelope marked "CONFIDENTIAL" by the clerk. Such reports shall be made available only to parties in the action and their attorneys. If anyone who is neither a party to the case nor an attorney of record for either party asks to review the file, the clerk shall remove the envelope from the file before making it available to that individual.
If anyone not entitled to access to the
report
specifically requests such access nonetheless, that individual shall be
advised to follow the procedures outlined in the Supreme Court's
Administrative
Order 92-8 entitled "Guidelines for Public Access to Court Records."
OHIO
Title X: Special Magistrates: Guardians Ad Litem - Order of Reference
10.0 Procedure/ Appointed Attorney or Special Magistrate
Whenever an application has been filed, or
the
Court sua sponte determines the necessity for:
b. The
appointment of a special Magistrate,
10.1 Guardian Ad Litem
When one party requests that the Court interview a child in a parenting proceeding (not visitation) and also requests the appointment of a Guardian Ad Litem, the Court must interview the child and appoint a Guardian Ad Litem for this purpose. The Court may also appoint a Guardian Ad Litem at any other time. The Court reserves the right to interview the child at the Court's own discretion at any time.
10.2 Guardian Ad Litem - List
Guardians Ad Litem shall be attorneys admitted to practice in the State of Ohio. Attorneys are invited to submit their names to the Court for consideration as G.A. L.'s. The form application (Form 10.1) is provided for the convenience of those who wish to serve as a Guardian Ad Litem. The Court committee comprised of the Judges, Chief Magistrate, the Administrators of the Parenting Department and the Family Counseling Department and the Chair of the Domestic Relations Committee of the Cincinnati Bar Association review all applications for experience and suitability for inclusion on the Court's list. Each application should indicate whether the attorney is willing to accept one pro bono case per year. In such cases, the attorney will be contacted by Court personnel prior to the assignment to ascertain whether that person is willing to accept that particular assignment. Fees for pro bono cases, if any, will be as the Court orders.
10.3 Guardian Ad Litern - Request for Appointment
All requests for the appointment of a Guardian shall be made within fourteen (14) days of the date that the parenting report is available, but in no event later than the pre-trial.
10.4 Guardian Ad Litem - Fees
With the exception of pro bono cases, Guardians will be paid at the rate of One Hundred ($ 100.00) Dollars per hour for both in and out of Court time.
Generally, the person who requests the appointment of a Guardian Ad Litem must deposit the sum of Five Hundred ($500.00) Dollars with the Clerk of Courts at the time that the request is made, unless a poverty affidavit has been previously filed in the case. The Court reserves the right to order both parties to make a contribution to the initial deposit of the G.A.L. and reserves the right to apportion the final expense of the G.A.L. in any manner it deems fit. All G.A.L.'s must keep accurate time sheets.
10.5 Role of Guardian Ad Litem
The role of the Guardian Ad Litem is to act for the benefit of the child or children. The Guardian is not a mediator, an arbitrator, a facilitator or an intermediary.
The responsibilities of the Guardian Ad
Litem
include:
B. Submission of written recommendations as to the best interest of the child(ren).
C. Presence
at the Court interview of the child(ren). If mediation occurs after the
Guardian is appointed, the investigation of the G.A.L. is stayed. The
Guardian
may participate in the mediation process upon request of the mediator
and
if such participation appears to be beneficial. Any agreement reached
in
mediation which is reviewed by the attorneys for the parties shall also
be reviewed by the Guardian before submission to the Court.
The Guardian is to be present for trial unless notified otherwise.
10.6 Report of Guardian Ad Litem
A written report of the Guardian Ad Litem shall be made available to the parties/attorneys no later than thirty (30) days prior to trial. The Court's copy shall be placed in the Court's family file (not legal jacket) and will be filed with the Clerk of Courts only upon agreement of the parties/attorneys and G.A.L. or order of the Court.
10.7 Procedure for Mandatory
Appointment (Contested)
B. File
Form No. 10.2 with the Clerk of Courts. Send copy to other
party/attorney.
Complete case caption of Form No. 10.5 (Entry Appointing Guardian Ad
Litem).
Deposit Five Hundred ($500.00) Dollars with the Clerk of Courts and
have
the Clerk stamp the entry "Costs Paid". Do not complete the rest of the
form.
C. Bring a copy of Form No. 10.2, the original entry (Form No. 10.5) and the original completed G.A.L. information sheet (Form No. 10. 3) to the Docket Office (Room 02-40).
D. The motion does not require a hearing and no additional action is necessary.
E. The Domestic Relations Docket Office will select a Guardian Ad Litem and complete the entry. Court personnel will file the original entry (Form No. 10.5) and send copies of the entry to the parties/attorneys and the entry and information sheet to the Guardian Ad Litem. (Form No. 10. 3, 10.4 and 10. 5). The guardian will have five (5) days from the date of appointment to reject the appointment by filing written notice with the Clerk of Courts and delivering a copy to the Docket Office (Room 02-40), with a courtesy copy to parties/attorneys. No specific reasons need be given if appointment is rejected. The Docket Office selects another Guardian and repeats the process.
F. If an attorney for a party objects to the appointment of a particular Guardian Ad Litem, a motion supported by affidavit which states with specificity the objection must be filed and hearing held before the assigned Magistrate.
10.8 Agreed Entries Appointing Guardian
Forms 10.2, 10.3 and 10.5 may also be used in those cases in which both parties/attorneys agree to the appointment of a specific Guardian. Complete all the forms. File Form No. 10.3 (Motion) with the Clerk of Courts. Deposit the required costs and have the entry (Form No. 10.5) stamped "Costs Paid" and bring the original entry and the information sheet (Form No. 10.3) to the Docket Office. The Court will assume responsibility for processing thereafter.
10.9 Payment of Guardian Ad Litem Fees
A. It is expected that an appointed Guardian Ad Litem will be compensated for the reasonable time expended on behalf of the appointment. The parties to the action should be advised of, and should be prepared for, this additional cost which may in some instances far exceed the initial deposit.
B. Guardian
to bring fee affidavit/itemized statement to Court hearing in a form
suitable
for filing.
2.
Guardian
submits documents (fee requested) to assigned Magistrate with courtesy
copy to parties/ attorneys.
b. If there is no request for a hearing within fourteen (14) days, the entry is journalized as a final order of the Court.
All requests for hearing must be in
writing, filed
with the Clerk of Courts and a hearing obtained from the Domestic
Relations
Docket Office (Room 02-40). A copy of the request for hearing must be
given
to the Docket Office and a copy with the date and time of hearing sent
to the other party/attorney and the Guardian Ad Litem.
10.10 All Other Cases in Which a Guardian Ad Litem is Requested
In all visitation/other parenting cases in which a party is not by statute (§ 3109.04(B)(2) Child to be interviewed) entitled to the appointment of a Guardian Ad Litem, a motion must be filed and hearing had before the assigned Magistrate unless otherwise agreed. Deposit will be assessed by the Magistrate and the Magistrate will charge one of the parties/ attorneys with the responsibility of returning the "Costs Paid" Entry (Form No. 10.5) and Information Sheet (Form No. 10.3) to the Docket Office (Room 02-40). Thereafter, the case will be processed in the same fashion as set forth above with the responsibilities of the Guardian Ad Litem tailored to the particular issues being raised.
THE COURT AT ALL TIMES RESERVES THE RIGHT TO APPOINT A GUARDIAN AD LITEM UPON ITS OWN MOTION AND UPON SUCH TERMS AND CONDITIONS AS ARE APPROPRIATE TO ANY PENDING CASE.
10.11 Forms - Guardian Ad Litem
Forms relevant to Guardians Ad Litem are available in the Domestic Relations Docket Office (Room 02-40). The following forms are relevant to Guardian Ad Litem:
Form No. Title
10.1
Application
for Appointment
10.2
Request
for Interview /Appointment of G.A.L.
10.3
Information
Sheet
10.4
Letter
to Guardian
10.5
Entry
Appointing Guardian Ad Litem
10.6
Letter
Re: Proposed Fee Entry
10.7
Entry
Fixing Fee of G.A.L.
10.8
Entry
- Payment of G.A.L.
10.9
Supplement
to Entry
UTAH
1994 Audit: Guardian Ad Litem
As you requested, my staff has completed their review of the state's Guardian Ad Litem (GAL) program. Utah's program can be improved if GALs uniformly follow procedures required by recent legislation and national standards. Recruiting more citizen volunteers to help GALs is also needed. As you recall, as part of our recent audit of Utah's Child Welfare System (report 93-06) we were asked to review the effectiveness of the GAL program. During that audit, GALs refused to allow us to review their records, citing attorney-client privilege as the reason. An ensuing legislative subpoena was "quashed" in court when the judge agreed with the attorney-client privilege argument.
However, while we were unable to get access to records, GALs did agree to discuss the program, share statistical information and discuss some cases with us. Some GALs met with us and discussed specific foster care cases reviewed during the audit of Utah's Child Welfare System. Time constraints during that audit prevented us from talking with additional GALs. Since that time, we have reviewed the program further because we wanted to provide the Legislature with as much information addressing their concerns as possible. We have subsequently interviewed additional GALs, conducted more in-depth discussions of previously interviewed GALs and further evaluated information given us by the GALs and the Administrative Office of the Courts (AOC). Since we were denied access to the GALs' records we were unable to verify what they told us during interviews. The information in this report is based on discussions with GALs, discussions with staff of the AOC, statistical information provided by the GALs to the AOC, and information from DFS case files. We were unable to verify the statistical information we were given because we could not trace the summary data to individual case files. We also conducted a literature review of recent articles in national periodicals.
Though we have identified some concerns with the program which are addressed in this letter, we believe the guardians perform a very valuable and important role in the state's child welfare system. Juvenile Court Judges interviewed generally praised the guardian's work given their limited funding and limited number of volunteers in the past. Also, during our audit of the state's child welfare system, we found instances where the guardians took a very active role in protecting the child. For example, in the DFS case files there are notations indicating that some guardians filed motions to permanently deprive parents of their parental rights when the parents proved incapable of parenting. Also, interviews with caseworkers showed that some guardians were actively involved in permanency planning decisions throughout the course of the child being in DFS' custody.
During our review, the Legislature passed House Bill 396 which addresses many of our concerns. This statute increases funding for the program and requires GALs to adhere to many Court Appointed Special Advocate (CASA) standards. These standards have been developed by the National Court Appointed Special Advocate Association which is a nationally recognized professional association consisting of professionals involved in child advocacy including judges, GALs, citizen volunteers, and GAL coordinators. These standards are recognized nationally by child advocacy experts and are used by many GAL programs across the country. Because many of our concerns were addressed by recent legislation, we limited fieldwork in this area.
Following CASA standards as outlined in the new statute and other recommendations by experts will help GALs better represent the "best interests" of the child and provide more consistency statewide. The GAL is an attorney hired by the court to represent the best interests of the child. This attorney, often assisted by volunteers, is to make certain the child is protected from further abuse or neglect, is receiving needed services, and will receive a permanent home as soon as possible. The recently passed House Bill 396 and CASA standards are designed to help the GAL represent the child. These standards require the GALs to have regular in-person contact with the child; assess the appropriateness and safety of the child's environment in each placement; attend all hearings and reviews; work actively with each case until released by the court; and investigate independently each case by interviewing the child, foster parents, case worker, and other parties and by reviewing DFS and court records. Currently, these recommendations are not followed uniformly among all GALs. Several GALs said they do not have time to visit foster children in the foster home because of high case loads. Several GALs report they do not attend administrative reviews because they are not always told when the reviews are scheduled; however, DFS reports they notify the GALs. Other GALs report that on occasion they have problems obtaining access to DFS records. Finally, citing a high case load, one GAL closes some cases before being released by the court.
Recent legislation and AOC action has
addressed
these concerns. The state's GAL coordinator reports that legislation
passed
during the 1994 session increased funding over three-fold from about
$400,000
in FY1994 to over $1.4 million for FY1995. Besides increasing funding,
legislation also further clarified duties by requiring GALs to be
present
at shelter hearings and administrative reviews. AOC staff report they
are
developing policies and additional training to implement this
legislation.
The AOC is also in the process of recruiting and training volunteers
statewide
using CASA standards. This legislation and action by AOC has either
addressed
or is in the process of addressing most of our concerns. However,
additional
procedures are needed to address some areas such as making sure
children
are assigned a GAL when their case is transferred to another juvenile
court
district. In addition, some practices such as following nationally
recognized
permanency priorities and working cases until released by the court
need
further emphasis.
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