Article:
SECTION 3 |
| Document Author: Rebecca Heartz for National CASA Contact: National CASA Date Posted: 5/97 |
| Section 3: Problems with the Current System A. Inadequate and Inconsistent Implementation by the States A 1990 national guardian ad litem study 38 documented the considerable variation among the fifty states in the implementation of the GAL requirement. The study found that the language in many state statutes is broad, leaving interpretation to local jurisdictions. This broad discretion has resulted in wide variation even within a single state, with adjoining counties often having different methods of representation. 39 The researchers cited the lack of a uniform method of representation as well as the lack of clear guidelines for responsibilities as causes of confusion and a blurring of roles. The result is often conflict among social workers, attorneys, and volunteers resulting in poorer representation of children. 40 The study also revealed that lack of adequate funding and the absence of strict accountability 41 have provided little incentive for full implementation by the states. 42 These shortcomings have produced inconsistent and inadequate representation for children, leading the study's authors to conclude that "despite the federal requirement that children receive independent representation, 26 states are not yet in full compliance with the spirit and the intent of the requirement." 43 While many of the participants who took part in the research project have questioned the reported findings from their jurisdictions, 44 few question the portrait of a system not fulfilling its mission. B. Attorney GALs Face Role Conflicts Historically, the role of the guardian ad litem was a legal concept. 45 However, it is clear that the intent of CAPTA and the expectations of most judges appointing GALs is that the responsibilities of the GAL include more than simple courtroom advocacy for the child. The broader role includes protecting the child's interests, including her long-range interests. 46 Numerous authors have written about the ethical conflicts that this expanded role presents to attorneys when they are appointed. 1. BEST INTERESTS VS. WISHES OF THE CHILD The American Bar Association's 1992 Model Rules of Professional Conduct require that attorneys, to the greatest extent possible, maintain a normal client-lawyer relationship when decision-making capability is impaired because of minority. 47 A conflict occurs when a child, who is capable of communicating her desires, expresses wishes which the attorney GAL feels are not in the child's best interests. In such situations it is unclear whether the GAL should argue for the child's best interests or for what the child wants. There is wide disagreement on this issue and few states provide guidance in either statute or policy recommendations. In those states that do, they address the issue differently. 48 In most jurisdictions there is no consistent approach regarding what an attorney should do when she disagrees with the child's express wishes.49 Some solutions have been suggested to help lawyers resolve their ethical bind. 50 Most recommend that the attorney advocate the child's position if the child is capable of considered judgment. 51 Determining the child's capability for such judgment is a complicated process which takes into account the child's age, maturity, and emotional stability. 52 Since the pace of development and level of maturity vary from child to child, children have sufficient abilities at different ages. How then is a child's competence judged by an attorney? One view is that a child's ability to make a thoughtful decision depends on his or her abilities to understand, to reason, and to communicate, together with having a set of values. 53 Another recommendation is that the advocate respond differently to the very young child, and the middle child aged seven to fourteen, 54 while allowing the child's wishes to be determinative at age fourteen. 55 2. PRIVILEGED COMMUNICATIONS Another ethical conflict that arises for attorneys is in the area of privileged communications. 56 Lawyers are ethically bound not to disclose the content of any discussion between themselves and their client, whether adult or child. 57 This means that if a child reveals to an attorney important information that would be relevant to the court's decision in the case, the attorney is duty bound to keep the information confidential. 58 When an attorney is serving as the child's legal counsel representing the child's wishes, there is no dilemma. However, if the attorney is appointed as the GAL and is directed to represent the child's best interests, the privilege may not apply. 59 3. PROVISION OF TESTIMONY Another obstacle to attorneys filling the role of GAL is their inability to provide testimony to the court. Attorneys may be prohibited from testifying in cases in which they are serving as the GAL. 60 However, having the report of the GAL accepted by the judge as an exhibit, or referring to it as part of the record may be insufficient to fully explain the basis upon which a recommendation is made. The parties should have the right to cross-examine the GAL as they would any other witness. Lack of federal or state guidelines and strong arguments on both sides of these issues have contributed another set of obstacles standing in the way of quality representation. |
At the moment, I'm still drafting my artist's statement while searching for viable youtube videos. This particular article just happened to be a lucky find which I felt I should post.
Citation:
National CASA Association Website
http://www.casanet.org/Library/guardian-ad-litem/gal-e-section3.htm
