"There appears to be
in the way in which a child’s expression
of their 'wishes and feelings'
is used in the decision-making process."
Donnelly, C. (2010).
Reflections of a Guardian ad
litem on the participation of
looked-after children in public law
proceedings. Child Care in Practice, 16(2),
kind of GAL are you?
ad litem (GALs) function in a
variety of roles, with extremely different
training, backgrounds and purposes across
North America. Despite these distinctions,
GALs share the responsibility of serving as
the court's eyes and ears. GALs are tasked to
investigate and report back to the court on
matters that will inform the court's
understanding of and decisions in the service
of the best interests of the child.
In some jurisdictions, a GAL
or a children's attorney is hired or appointed
to represent the child's wishes (as distinct
from the child's needs) before the court. In
still other jurisdictions, there are specific
subtypes of GALs tasked to advise the court in
very narrowly defined matters. For example, in
Massachusetts, the court can appoint a GAL to
investigate the child's needs and a second GAL
to investigate whether the child's
psychotherapy privilege should be waived
Across these many and varied
roles, GALs, CASA workers and children's
attorneys must be held to the highest
standards of impartiality, sensitivity, and
investigative methods. Observations,
inferences and recommendations must be
informed by contemporary research, a depth of
knowledge about child development and family
functioning, and an ability to reasonably
anticipate future needs.
"... there is
profound controversy over the role
that lawyers for children should play in family
proceedings. Should they play the
traditional role of lawyers,
acting on the “instructions” of
their child clients, or are they
to be “friends of the court,”
ensuring that all relevant
evidence is available but not
advocating for any position, or is
the role to advocate for the best
interests of the child based on
the lawyer’s assessment of the
proper position to advocate?"
Bala, N., Birnbaum,
R. and Bertrand, L. (2013),
Controversy about the Role of
Children's Lawyers: Advocate or
Best Interests Guardian?
Comparing Practices in Two
Canadian Jurisdictions with
Different Policies for Lawyers.
Family Court Review, 51: p. 681.
Law Consulting PLLC and Dr. Garber work with
counsel, the courts, and GALs themselves to
assure that the investigative process is
consistent with these criteria as well as
jurisdictional mandates and the court's
Read more here:
Bala, N., Birnbaum, R.
and Bertrand, L. (2013), Controversy
about the Role of Children's Lawyers:
Advocate or Best Interests Guardian?
Comparing Practices in Two Canadian
Jurisdictions with Different Policies
for Lawyers. Family Court Review, 51:
Shapse, Steven N (2010).
Serving as a guardian ad litem. In
Walfish, Steven (Ed), (2010). Earning
a living outside of managed mental
health care: 50 ways to expand your
practice, (pp. 177-179). Washington,
DC, US: American Psychological
Taylor, L. (2009). A
lawyer for every child:
Client-directed representation in
dependency cases. Family Court Review,
| The voice of
movement across North America to invite the
child's opinions (and in some cases, the child
him- or herself) into family litigation raises
important questions about how and when and why
the child might be heard, and by whom. The
task is often assigned to the GAL or the
children's lawyer or, in some cases, is
explicitly ordered in the form of a "voice of
the child report" (read about one approach to
this process here ).
Family Law Consulting PLLC and Dr. Ben
Garber lead the way in identifying the
various systemic pressures that can
corrupt the child's voice including
scripting, coaching, bribes and
threats, enmeshment, estrangement and
alienation. Anticipating and
minimizing or -after the fact-
identifying these destructive
influences will help to determine the
weight that should be given to the
the Child’s Attorney must determine
whether the child is of
diminished capacity under the Model
Rules of Professional Conduct and,
if so, must treat the client
accordingly under Rule 1.14.
Specifically, the attorney may, if all
other remedial measures are
override the child’s wishes and
advocate a position that the child
but for the brainwashing of the child
used to alienate him or her from a
Rosen, J. (2013), The
Child's Attorney and the Alienated
Child: Approaches to
Resolving the Ethical Dilemma of
Family Court Review, 51: p. 330.
Whether and how the
child's voice is elicited, how it is
interpreted, the weight that it is given in
the BIC formula, and the recommendations that
are built upon it, are all subject to judicial
scrutiny. Family Law Consulting PLLC will help
get it right from inception, can help critique
the process after the fact, and can help all
involved better assure that the child's needs
are more fully understood and served.
the enabling order explicit request that
you interview the child or otherwise
determine his or her wishes?
are tasked to interview the child,
do you have the requisite skills?
interview the child, do you do so in your
office? In court? At the child's home?
might the parents have influenced the
child's expressed wishes?
there be a record of the interview? If so,
who will have access and what will you
tell the child? If not, how will you
handle due process concerns if your report
incorporates the child's input?
interview the child, who else will be
present? Counsel? The parents?
what we know in very brief form:
want to feel that their voice has been
heard, even if the eventual court's ruling
is inconsistent with their wishes.
who feel that their voice has been heard
are more likely to comply with the court's
child's expressed opinions are easily and
often contaminated by a wide variety of
systemic confounds. The GAl's familiarity
with these confounds and careful planning
to minimize their impact will better serve
the child and protect the professional
from disciplinary measures.
Read more here
- Birnbaum & Bala (2009), “The Child’s
Perspective on Legal
Representation: Young Adults
Report on Their Experiences with
of Family Law, 25(1), 11- 71.
- Birnbaum & Bala (2010) , “Judicial
Interviews With Children In
Custody And Access Cases:
Comparing Experiences In
Ontario And Ohio,” International
Journal of Law, Policy and the
M. (2014), Family Law Proceedings and the
Child's Right to be Heard in Australia,
the United Kingdom, New Zealand, and
Canada. Family Court Review,
S. (2014), Judicial Discretion and the
Voice of the Child in Resolving Custody
Disputes: Comments on the Think Tank
Report. Family Court Review, 52:
Expert consultation to GALs, children's
attorneys, and CASA workers
Law Consulting PLLC provides expert direction
to front-line investigators from appointment
through testimony, including:
Planning the investigative process so as
to remain impartial, balanced,
child-centered, consistent with contemporary
best practices, and relevant ethical and
- Service agreement:
Creation and delivery of an initial
contract detailing the nature and limits
of the proposed process
- Front-loading: The
selection and solicitation of
preliminary data intended to focus the
the investigation and streamline the
- References and
collateral materials: Assuring that
third-parties provide informed assent
and provide data in a time- and
- Interviews: Who to
interview, when and how? How to minimize
and recognize sequence and proximity
effects, systemic confounds (e.g.,
alienation, estrangement, enmeshment)
and leading questions.
- Observations: How
best to elicit a representative sample
of parent-child interaction.
interpretation, and summary: Generating
hypotheses built around the questions
that the court needs answered.
- Deposition and
testimony: Providing the court with
credible, consistent and child-centered
and critique: Consulting to
front-line investigators in preparation for
deposition, testimony, and/or board defense.
Family Law Consulting PLLC and Dr. Garber
bring expertise in child development, family
systems, divorce process and investigative
best practices to bear on your work product so as to
better prepare you to explain, defend and
improve your skills.
Read more here:
Lee, S. M., &
Nachlis, L. S. (2011). Consulting with
attorneys: An alternative hybrid
model. Journal of Child Custody:
Research, Issues, and Practices,
Austin, W. G.,
Kirkpatrick, H. D. and Flens, J. R.
(2011), The emerging forensic role for
work product review and case analysis
in child access and parenting plan
disputes. Family Court Review, 49:
Association of Family and
Conciliation Courts and Child Custody
Consultant Task Force (2011), Mental
health consultants and child custody
evaluations: A Discussion paper.
Family Court Review, 49: 723–736.
J. N., Gottlieb, M. C., Gould-Saltman,
Hon. D. J. and Hendershot, L. (2011).
Partners in the process: How attorneys
prepare their clients for custody
evaluations and litigation.Family
Court Review, 49: 750–759.