Growing up I read in books, heard people talk about, and saw in movies where children went to court when their parents were getting divorced, and they got to tell the court what parent or parents they wanted to live with. I have yet to see that happen in the Utah Court System.
In my seven weeks of being a legal assistant to this point, I have been to a proceedings where custody and parent-time were involved. When I began this job, I assumed that we would hear from the children in the court; however that is not the case.
To put it bluntly in my own words, Utah courts believe that children should not be subject to the ugliness of their parent’s divorce proceedings. From what I’ve seen, they are not allowed in the court room, prevented from participating in or even watching or listening to court proceedings involving them, and the parents are strongly advised, sometimes even ordered, not to discuss matters of the case with their children.
I feel like divorce cases impact the children more than anyone else in the divorce process, yet they are the people who are shut out of meaningful contribution the cases and proceedings the most.
More often than not the courts or at least one of the attorneys want to appoint a guardian ad litem for the child.
What is a guardian ad litem? According to the Utah Office of Guardian ad Litem webpage on the Utah Courts website, “In court cases where a family is in crisis, and where children are being mistreated or are not receiving proper care, there is no one with more at stake than the child. A Guardian ad Litem ensures that the child’s rights are protected, the child’s voice is heard, and the child’s best interests are advanced.” So a guardian ad litem (GAL for short) is supposed to be an attorney who represents the child and protects the child’s interests. How does a GAL do that? From what I can tell, poorly.
Basically, the children talk to the GAL and then the GAL talks to the court, but does not tell the court what the children said. Instead, the GAL makes recommendations to the court as to what the court should do for the children and does so ostensibly on the basis of what the children said, even though no one has any idea what the children said, if they said anything at all. It’s a state-sponsored bad game of telephone. I’m no lawyer. I’m not even that familiar with the legal system yet, but it doesn’t take a seasoned pro to see that the GAL system isn’t effective. How could it be, the way it’s set up like that?
You might be thinking, “Oh, okay, so GALS might be helpful for younger kids who can’t express themselves very well in a court-like setting, and there may be some merit to that argument, but courts will appoint a GAL for children who are 14 years old and up. Come on, these kids can speak for themselves.
My take away from this is – let the children speak. They already know their parents are going through a divorce. Appointing a GAL to “speak for them” doesn’t shield the kids from anything but competent, attentive, and fair treatment by the courts. Kids in these situations should not be kept in the dark. They are the ones who are affected most by the court’s decision. their observations, experiences, feelings, opinions, and desires matter. They shouldn’t be silenced or muzzled.
Utah Family Law, LC | divorceutah.com | 801-466-9277