Ciyou & Dixon, P.C. advocates sometimes represent clients who believe a child, their child, is not having his or her voice heard in the “white noise” of a acrimonious divorce proceeding. Nevertheless, there are a number of legal methods by which an attorney and client may aid the judge in ensuring the child’s best interests are heard and met.
This is after all a key focus of trial courts.
Some of the tools available depend on where the case is oriented, from the beginning of divorce proceeding, to post-divorce child custody modification. In consultation with your counsel, Ciyou & Dixon, P.C. advocates hope you find this background material useful as you work with your counsel to chart a course to meet a child’s best interests.
Under the dissolution and paternity statutes, there are provisions for a court to appoint a guardian ad litem or court appointed special advocate. This person must investigate the matter and act in the child’s best interests. In limited cases, these professionals may be volunteers or paid by government funds. However, these resources are typically reserved for serious cases.
In the balance of the cases where this request is made by a party, one or both parents must pay for the GAL/CASAs services. Nevertheless, most individuals who are trained as GALs/CASAs do it for reasons other than money–to help children. This is the reason they volunteer their time to take programs to be approved to act in this role. Thus, they are typically conservative in billings and cost effective.
The tradeoff is many have other full-time jobs and this limits the time and resources he or she may commit to any appointment. GALs/CASAs have immunity for their acts, which is to ensure they may execute their duties without risk of any legal blowback by an aggrieved parent. Usually this includes investigating a case, preparing reports, and testifying in court.
Licensed clinical social workers play a vital role in the domestic legal system. They may work with an individual child or family. LCSWs may also conduct custody and parenting time evaluation. In this capacity, they interview the parents, observe parent-child interactions, and gather collateral information to validate the parents’ positions.
The authority for the social worker to work in a case is found under GAL/CASA provisions as well as that to afford a custody evaluation.
Ultimately, they prepare a written report and file it with the Court. They may be called to testify about what custody and parenting time arrangements are in the child’s best interests. In this case, and with every other professional who may be involved in a case, the trial court is not bound to follow his or her decision.
The trial court alone makes this decision, although they typically place significant weight on a professional’s recommendations. Thus, in routine cases, social workers should be considered as tools for custody and parenting time evaluations. In many cases, their formal psycho-social training may exceed that of GALs and CASAs.
This does not make them more or less valuable to a case. However, the more factually complex the dynamics of the case, the greater the potential for mental health issues, the more likely there is the need for a more trained expert, such as a psychologist or attorney to have the appointment.
Where the financial resources are available, particularly in cases where there are companion matters, such as protective orders, CPS investigations, or criminal matters, a clinical psychologist can add a crucial dimension to custody and parenting time matters.
Clinical psychologist are trained in sorting out the inherent perception differences that may divide parents and obscure their focus on the children’s best interests. This comes from lengthy formal training, but also specific standards for custody work set forth by the American Psychological Association.
In addition, the breath of their work includes psychological testing. These tests range from the general into personalty states and traits by MMPI testing to those focusing on specific issues, such as propensity for violence. Psychologist routinely perform custody, parenting time and relocation evaluations and make detailed written reports to the courts.
Trial courts tend to give these great weight and where available are serious considerations relative to legal objective and budget. These professionals may be appointed under the provisions of the paternity and dissolution act and Trial Rule 35.
Attorneys may perform roles from GAL/CASA to custody evaluator. In the right case, they have a unique perspective into how to move a case through the legal system, which may be invaluable to the attorneys for the parties and judge.
The shorter time the parties and children spend in the litigation, the better it is for the children and the parties. Litigation takes it toll and an attorney, in the right case, may be the right fit to the legal need. The authority for this is because an attorney is an officer of the Court.
A fine distinction that may apply in a small percentage of cases is between a an attorney for the child and the child’s attorney. A attorney as a GAL/CASA or custody or parenting time evaluator makes recommendations in the child’s best interests. A child with wealth or unique needs may have his or her own counsel who must follow the child’s directives to his or her legal objectives.
A newer concept in the domestic arena is a parenting coordinator. A PC may be a social worker, psychologist, or attorney. Their task is to help the parties address issues that arise as they come about–in real time. This minimizes the risk of a build-up to litigation phase. And its repeat throughout the children’s minority.
At present, there is no precise authority for a PC and the parties must agree to it as a matter of contract. If they do so, they the PC is appointed and may help with decision ranging from guidance to binding the parties with a decision he or she makes. The cost of this is moderate relative to all legal tools, and if successful, mitigates or eliminates litigation and saves significant legal fees.
By statute, the parties may request the trial court to interview the children in the judge’s chambers outside the presence of the parents. As a general rule, this is done to avoid calling the child as a witness at a divorce or post-divorce hearing in open court in front of their parents. Courts are reluctant to do this because without the attorneys or a court reporter present. In the right circumstance, however, this tool should be considered and discussed with counsel.
CALLING A CHILD AS A WITNESS.
The final tool that may be considered, albeit in very rare cases, is calling a child as a witness in the divorce or child custody case. There used to be a rule that a child under ten (10) is an incompetent witness, but this has been repealed. This puts the child on the stand in front of their parents. Almost universally trial courts disfavor the practice. Nevertheless, this tool may be discussed and considered with counsel.
There are multiple legal avenues a party may explore to aid a child’s voice in being heard in the context of domestic and/or divorce litigation. At Ciyou & Dixon, P.C., we hope you find this educational material useful to your situation. Attempting to meet a child’s best interests in the course of domestic litigation by using any of these tools is a selfless act that will aid you and your child in moving on post-divorce and maximize life moving forward.