December 1998

Rethinking the Roles of Guardians ad Litem in Dissolutions: Are We Seeking Magicians?

Right now in Washington state, a broad cross-section of people involved with our legal system are engaged in a conversation about guardians ad litem ("GALs"). In 1996, the legislature responded to citizen complaints about perceived abuses involving GALs in both custody matters and guardianships by drafting legislation to govern GALs under Titles 11,13, and 26.¹

For the last year and a half, many committees under the auspices of the Office of the Administrator for the Courts (OAC) as well as county court administrators, state and local bar association family law sections and one statewide
conference² have been examining the issues. Division One of the Court of Appeals joined in the conversation with a recent opinion.³ People are asking: What is the role of a GAL? Is the role different in different settings? Are some functions incompatible with other functions or a particular role? Are there practice and ethical standards that can be expected and/or imposed?

While many people have strongly held opinions about GALs, most people admit they do not have a clear understanding of what one is. GALs are referred to as "investigators," " expert witnesses," "lawyers," "lay advocates for the child/incompetent," "lawyers/lay advocates for the child's/incompetent's 'best interest,'" "mediators," "negotiators," "supervisors," " monitors," "friends or advisors to the court," "eyes and ears or arms of the court," "recommendors," " fact finders" and "de facto decision makers."⁴ Sometimes all are rolled into one figure. Many of us (lawyers, GALs, commissioners and judges) have sounded as if we were talking in circles when we tried to explain what the GAL is.

Washington Statutes Unclear

The statutes and cases discussing GALs in custody/dissolution contexts in this state are neither comprehensive nor clear. RCW 26.09.220 lumps GALs and investigators together without any guidance to distinguish them.⁵ The statute gives a list of duties or functions, but it is not explicit about the role. For example, the GALs have access to all information without going through discovery, so they are not quite like parties, lawyers, typical witnesses, nor even expert witnesses. GALs must show all parties their notes and report. As such they have no confidentiality and, thus, don't act like lawyers. They can be called to testify and are subject to cross-examination. In this regard they are like witnesses, not lawyers. GALs' reports to the court on parenting plans are admitted automatically. This is not something within the role of a traditional lawyer, party, investigator or expert witness. And they may recommend which parenting plan the court should adopt (like an expert witness, special master, or judge), unlike a party, lawyer, or lay witness. RCW 26.09.220 does not establish standards concerning when the court may or should appoint any or all of these figures.

Elsewhere in RCW 26 there is language that may require the appointment of a GAL when issues of child abuse are alleged, but that section may be read to refer only to dependencies or special proceedings under 26.44.⁶ In 1991, the Legislature amended RCW 26.12. adding subsection 175, which says the court may appoint a GAL whenever necessary to protect the child's best interest. The person is to investigate, report to the court on parenting arrangements and represent the child's best interest.⁷ The statute gives no further guidance on roles or functions.

The cases have not been much more helpful. Two early Court of Appeals opinions state that appointment of someone to act as attorney for the child or to do an investigation is not constitutionally required but may be necessary if the parties don't develop all the evidence.⁸ By 1985, that person was called a GAL or a lawyer for the child.⁹ None of these sources gives much guidance as to the role of the GAL.

In a very recent case, Fernando v. Nieswandt, the Court of Appeals addresses the role of a GAL in parenting plan disputes. The focus in this case is the status of expert witness, since one party challenged the GAL's testimony regarding her recommendations as inadmissible opinion under ER 702. The court notes that the statute allows the GAL to report to the court her impressions of interviews with doctors and experts and to make recommendations about appropriate parenting plans, even though the GAL "need not have any specific training."¹⁰

It is assumed without discussion that the Legislature can vary the rules of evidence to authorize family courts "to hear the opinions of a witness who would not be a traditional expert under ER 702." Then, within three sentences, the Fernando court states that the GAL is not appointed as an expert, but is an expert:

A guardian ad litem is not appointed as an 'expert.' Rather, she is appointed to investigate the child and family situation for the court and make recommendations. In effect, she acts as a neutral advisor to the court and, in this sense, is an expert in the status and dynamics of that family who can offer a common sense impression to the court.¹¹

These three sentences illustrate some of the contradictory impulses which drive the confusion about GALs. Here the GAL is viewed from the perspective of the court and is seen as an adviser for the court, but not as a representative of the child.¹² The GAL need not be a real expert on family dynamics, nor on anything else. But in the end, the GAL gives the court not an expert opinion, but a common sense impression. Typically, the court does not need nor does it permit a witness to give common sense impressions, especially on the ultimate issue.¹³

OAC Report

The OAC, GAL Project Final Report was released in mid-August, 1997. The Report makes a valiant effort at trying to set up statewide standards for the training of GALs and for resolving grievances against them. This is particularly challenging when the role of the GAL has not been clarified. The Report defines GALs as

paid professionals . . . who contract with the court or bill clients for providing services . . . loosely directed by statute, eligibility criteria for appointments . . . are established by the court in each jurisdiction.

CASAs are vounteer GALs. The Report specifically recommends that the Supreme Court adopt rules establishing the GAL/CASA roles, responsibilities, duties, rights and powers. The Report then offers a draft of several such rules.

Before reaching the rules, the Report seems to propose some additional definitions for GALs: "represent the best interest of the child"(p.5); "advocate on behalf of the child"(p. 5); "friends of the court"(p. 23); and "(t)o the extent that the person served by the GAL/CASA is a party, the GAL/CASA can assume the role of party in the case, including a pro se party's ability to perform duties traditionally performed by an attorney."(p. 40)

"Represent" and "advocate" are often terms of art in the context of courts which refer to functions performed by a lawyer. But many GALs and CASAs are not lawyers. And the Report itself states that the GAL gets lawyer status from being a pro se party, not by direct appointment as lawyer.

Further, it is not clear whether the GAL is a pro se lawyer or an advocate for a person (the child), or for a concept (the best interest of the child) as perceived by the GAL. It is very rare in our jurisprudence to have individuals appointed to represent concepts, especially if the concept is the very standard by which the court is to make its decision.

OAC-proposed Rule 2 covers general roles and responsibilities of the GAL. Rule 2 contains a list of 19 'responsibilities.' Most are aspirational exhortations to be professional (c), avoid conflicts of interest (e), be respectful (f), informed (g), etc. Some of the 19 do speak to role. The first requires that the GAL represent the best interests of the person for whom he or she is appointed, even if conflicting with the wishes of that person. And then the rule goes on to say that the GAL "shall not advocate or advise any party in any way which would create in the mind of a reasonable person an appearance of representing that party." Rule 2 (a). This section seems to contradict the earlier assertion that the GAL can substitute for a child-party and, in fact, represent that party. Notably absent from the Report is any requirement that the GAL inform the court about the child's wishes.

Proposed Rule 4 is entitled "Rights and Powers of GAL." It reiterates that the GAL must get notice of all pleadings in a case and can appear in all proceedings through submission of oral and written reports, subject to cross-examination and impeachment. This envisions that the GAL will function as a witness, even at a motion hearing. However, in a section entitled additional rights and powers, when the person represented by the GAL is a party, the GAL is given the rights to file pleadings, conduct discovery, note motions, subpoena and examine witnesses, appeal decisions, and make oral arguments. And despite the fact that these look like the kinds of activities a lawyer engages in, the rule asserts that these shall not constitute the unauthorized practice of law.

Authors' Conclusions and Recommendations

As a state, we have only just begun in earnest this conversation about GALs. By referring to the report, the recent case, the statutes and older cases, we can see a real disparity in who these figures are perceived to be and what they do or should be able to do. It is difficult to imagine how they are to be regulated if the roles and responsibilities are so in conflict.

From our reading of cases and statutes from other states, law reviews, practice articles, and training materials, we have discovered that most states are in the same circumstances as Washington. They utilize GALs without a clear understanding of what they are.¹⁴

Our conclusions and recommendations are straightforward:

(1) One appointee cannot be all things to all people and cannot do everything.

(2) Latin further obscures the issue. The term GAL is just too vague and malleable.

(3) Since these figures are appointed as part of our legal system, the courts should use existing roles from within that system. This last recommendation coincides with Rule 6 of the OAC Report, which states that the court can appoint someone not as a GAL but to a limited role, such as mediator, investigator, evaluator, etc. We would not, however, suggest using terms, such as "evaluator," which do not clarify the role and are not traditional figures within the legal system. If this rule is followed there would not be a need for a GAL.

There are recognized roles: investigator/fact witness; expert witness; lawyer, mediator and party. We should decide what kind of a role is appropriate to the situation and then appoint someone with the satisfactory qualifications to that role. The recognized roles will constrain the appointee's functions.

A lawyer for the child would advise the child, advocate for the position adopted by the client, would not testify, and would file briefs — not reports with recommendations. The lawyer would be admitted to the bar and would not be a lay advocate or lay representative.

The "investigator" would collect information. The report of that information would be provided to the parties, not to the court. The parties would present the information to the court in the form of competent witnesses. The investigator might be such a witness if s/he has firsthand knowledge of some information, but the investigator would be constrained, like any other witness, by the rules of evidence. A well-trained investigator, as is frequently used by prosecutors, plaintiffs and defendants, would not become an automatic expert witness and would not make recommendations or render opinions on the outcome.

An "expert witness" would be appointed to address issues that are within the expert's specific qualifications where needed to assist the court. S/he might testify to certain conclusions and even relay hearsay, but only on those issues and to the extent that the expert's qualifications permit. The expert would not submit a report to the court but would address the court under oath, subject to cross-examination. The expert would not represent anyone, including the court.

In dissolutions, children are not parties. Thus a GAL should not be given party status when the child does not have that status. In other types of cases where the child or alleged incompetent is a party, the court should be very clear if it is giving the GAL party status. And if so, it seems to us that by permitting the GAL to serve as recommendor and as pro se lawyer, the court is creating a super party with special rights which distort the limits of due process.

The court may wish to have someone monitor visits or serve as a mediator. These are roles that are quite limited in scope and, in the case of mediator, conflict with almost any of the other roles and functions.

In conclusion, the rights and interests of the various participants (parents, children and alleged incompetents) are very important, too important to be relegated to a process that is less than full due process of law. If, collectively, we cannot agree on the basic outlines of what a GAL is, perhaps we must move to a different paradigm for meeting the needs of the child. This is not an academic question but one of deepest importance to our system of justice.

Endnotes

¹ESSB 6257, 1996.

²First Annual Inter-county GAL Forum, 2/28/97, sponsored by the King County Bar Association, GAL Committee.

³Fernando v. Nieswandt, 87 Wn App 103, 107, (Div I, 1997).

⁴No statute or case in Washington expressly says the GAL is the decision maker. However, Prof. Lidman is reminded by a Thurston County colleague that while serving as commissioner pro tem in 1986, she asked one of the lawyers what the GAL had "decided." Many people use the term "fact-finder" to refer to GALs. They often mean "investigator." Fact-finding is a function which is constitutionally reserved to the judge or jury.

⁵The current OAC-approved form order appointing a GAL or investigator also adds lawyer, but, likewise, makes no distinctions between them, and presumably a judge could check off all duties under each label. When the Washington Marriage and Divorce Act was adopted, it was modeled on the Uniform Act, which did not use the term GAL.

⁶RCW 26.44.053.

⁷RCW 26.12.175(b)

⁸In re the Marriage of Waggener, 13 Wn. App. 911,917 538 P.2d 845 (Div. II, 1975) Wildermuth v. Wildermuth, 14 Wn. App. 442, 446, 542 P.2d 463 (Div. I, 1975).

⁹Marriage of Nordby, 41 Wn. App. 531,534, 706 P2d 277 (Div I, 1985).

¹⁰Fernando v. Nieswandt, 87 Wn App 103, 107, (Div I, 1997). Even for those who do have extensive training, such as psychologists, there is a complete split within the profession as to whether they are qualified to recommend in favor of one parent having custody. American Psychological Association: Guidelines for Child Custody Evaluations in Divorce Proceedings, III, #14 (1994). Gary B. Melton et al., Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals & Lawyers (1987); Lois Weithorn (ed.) Psychology and Child Custody Determinations, University of Nebraska Press (1987), ("[F]inal determinations as to which placements are in the children's 'best interests' necessarily become value laden and nonscientific . . . Thus, in offering opinions on which of two or more adequate options is 'best for a child,' psychologists are performing not as 'experts' but as 'individuals with personal biases and lifestyle preferences.'" at 159-60.)

¹¹Fernando v. Nieswandt, supra at 107.

¹²It is unusual, except in the context of probation, for our courts to engage investigatory personnel on the court's behalf. This is the jurisprudence of the European civil law system, which uses investigating judges.

¹³In all other types of cases in our legal system, an expert must be qualified based on special experience or training and are not needed if the subject matter is within common knowledge. FRE 701.

¹⁴ Minnesota has conducted the most intensive study of guardians ad litem in custody-type cases: Guardians ad Litem, Program Evaluation Division, Office of the Legislative Auditor, Minn., 1997). One of the study's major conclusions was that

" . . . [t]here is not a universally understood or consistently applied definition of the appropriate roles and responsibilities for guardians in Minnesota, leading to a frequent confusion and different expectations."

 

Raven Lidman and Betsy Hollingsworth are clinical professors of law at Seattle University School of Law, where they have supervised students representing children in dissolutions. Their article, "The Guardian ad Litem in Custody Proceedings: The Judicial System Stretched Beyond Recognition," is scheduled for publication in December 1997 in the Vol. 6 issue of the George Mason Law Review.

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