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May 14, 2012

Guardians Ad Litem In Private Custody Litigation: the Case For Abolition

Published on May 01, 2002 by Loyola Journal of Public Interest Law

Guardians Ad Litem In Private Custody Litigation: the Case For Abolition

by Richard Ducote

On July 17, 2000, the San Francisco Daily Journal published an editorial written by then sixteen-year-old Alanna Krause, an honor student and the daughter of a prominent and wealthy California attorney. The essay poignantly brought a very rarely seen ’consumer’s’ perspective to the issue of guardians ad litem in private custody cases. She began her articulate discussion with accurate observations:

Hundreds of years of legal history have lead the United States to implement a system that ensures that every party in a legal proceeding gets a voice. We rest assured that, unlike in other nations, we cannot be incarcerated, so well thought out: God Bless America.

But there is a forgotten minority that is not afforded those basic rights. They are not criminals or foreign aliens. In contrast, they are a group we hold dear- one innocent and well meaning, with no hidden agendas or twisted motives -- children.

Instead of being actually represented, children get their ’best interests’ represented by adults. We children have no choice and no recourse when those adults have their own agendas. A case in point? Mine.

Ms. Krause explained that during her parents’ nine year custody case in Marin County, California, she was forced to live against her will with her father, who she described as ’an abuser’ against whom she herself filed over nine reports with the county child protection agency and the local police. According to Ms. Krause, life with her father was ’Hell,’ as he was a substance abuser who violently mistreated her and eventually intimidated her mother away from the expensive and frustrating litigation.

Of the attorney appointed to represent her interests, the equivalent of her guardian ad litem in other states, Ms. Krause complained:

The lawyer appointed to represent my ’best interests’ . . . *spent her allotted time with me parroting my father’s words, attempting to convince me that I really wanted to live with him. She ignored my reports of abuse. . .I wrote the judge letters, called her office and did everything I could to make myself heard. She ignored my pleas. I had no rights. I couldn’t replace my lawyer with one who would speak for me nor could I speak for myself in court. I couldn’t cross-examine the court evaluators or therapists and their claims were thus untouchable. I felt like I was witnessing the proceedings from the wrong side of soundproof glass.

After she eventually ran away from her father’s home at age thirteen, Ms. Krause was taken under the jurisdiction of the Los Angeles County Juvenile Court, where she was an actual party, unlike in the private custody case in Marin County. Following new investigations there she was returned to her mother’s custody. Her editorial plea wisely explains the context of this article:

The practice of trying to ascertain what is in a child’s best interest exists because minors supposedly cannot speak for themselves. Yet, at 11, I could speak for myself. I had a mind and set of opinions, but no one seemed to care. The judge denied my right to legal representation, especially when the court-appointed lawyer wouldn’t speak the truth. Granted there is no guarantee that hearing me would have inspired the judge to untwist her motives and unclench her hold on personal allegiances and biases, but who knows? At least is would have been in the court record.

Of course, Alanna Krause’s case alone does not mandate the abolishment of guardians ad litem in private custody cases. However, the inherent systemic problems manifested in her case, clearly representative of those pervasive in the nationwide use of such guardians ad litem, do establish the convincing argument that the role of guardian ad litem (GAL) must be abolished in private custody cases, i.e. litigation between parents and nongovernmental parties. This article examines the purported historical justification for the use of GALs, the plethora of criticism nationwide concerning their involvement, their poorly defined role, their particular failures in cases of child abuse and domestic violence, their unaccountability, their unjustified cost, and alternatives to their use.

To read the whole article (PDF) click here

Copyright © 2002 Loyola Journal of Public Interest Law

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