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Tag: PGAL

The Problem with Private Guardians ad Litem. Part 3 of 3

As any attorney can do with any client, a PGAL clearly has the right to argue on a child client’s behalf, and the Utah Code makes clear that a PGAL can express a child client’s “intentions and desires” (See Utah Code Section 78A-2-705(13)(d)). Here is how I analyze the argument that PGALs state what they allege to be a child client’s intentions and/or desires:

  • If an attorney makes an argument pertaining to what the court’s child custody or parent-time orders should be, that argument must be based upon evidence duly admitted into the court record, or there is no evidence supporting the argument. An argument unsupported by the evidence in the record is basis for objection. An argument based upon speculation is basis for objection.

  • A recommendation made by a PGAL is an argument. The elements of a recommendation and an argument are the same. Without a basis of duly admitted evidence in the court record for support, a PGAL’s recommendation is without support.

  • Implicit in an argument are underlying facts cited to support the argument. A PGAL cannot argue that “this is the child’s desire” without citing evidence of the child’s desire. A PGAL who claims to know a child client’s intentions and desires to the court is, by definition, testifying, not arguing. To argue that we can discern a child’s intentions and/or desires from the evidence in the record still requires evidence in the record to which to cite in support of the argument. An argument cannot be a substitute for evidence. An argument is not an argument without evidentiary support.

  • If a PGAL bases his arguments to any degree upon his child client’s communication of the child’s intentions and desires (whether to the PGAL or to someone else), the child client must have first communicated his/her intentions and desires. If a PGAL then reports to the court those attorney-client communications on the subject of the client’s intentions, that is still either 1) hearsay or inferential hearsay or 2) the witness’s proffered testimony that entitles a party to cross-examine the witness at the very least.

  • If a PGAL claims to have discerned a client’s intentions and desires without having received express communication from the client as the client’s intentions and desires (such as, for example, not conversing or corresponding in writing, but instead monitoring the child’s communications with other people or observing the child’s behavior), then the PGAL would be acting as a witness.

  • If a PGAL is the attorney for a party to the case, then the PGAL does not get to testify for the client. And if the PGAL proffers a client’s testimony, then that testimony is subject to cross-examination.

  • A PGAL cannot “argue what my client wants” without there being some evidence that what the PGAL asserted “the client wants” is, in fact, what the clients want. With parties that’s fairly easy because they will have filed a pleading stating what they want. If there is any question as to whether the pleadings are not those of the party, then the party can either indicate that spontaneously or be asked to verify or deny it. With child clients of PGAL there are rarely, if ever, pleadings filed with the court(as the term is properly defined, i.e., a formal statement of a cause of action, not as the term is carelessly thrown around to mean documents filed with the court) by the children through their counsel. Even if the PGAL had somehow filed pleadings in the action AND the court recognized the children as parties to the action, their PGAL attorney cannot testify for them.

 

  • Advocacy of a PGAL client’s desires requires evidence of the child client’s desires. Evidence of the child client’s desires requires a record that the child expressed/articulated those desires; otherwise, we would find ourselves in a situation where the PGAL could literally fabricate “argument” on the basis of nonexistent evidence and get away with it clean. That is clearly not how the law and the rules of evidence apply.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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The Problem with Private Guardians ad Litem. Part 2 of 3

As any attorney can do with any client, a PGAL clearly has the right to argue on a child client’s behalf, and the Utah Code makes clear that a PGAL can express a child client’s “intentions and desires”. (See Utah Code Section 78A-2-705(13)(d))

When a PGAL tells a court, “I’ve spoken to my client, and based upon those discussions, I can tell you that his/her intentions and desires are . . .” is hearsay or, at the very least, inferential hearsay. It can’t be anything else. Such a hearsay declarant is at least subject to cross examination (URE 806).

There is a pervasive belief among Utah family law attorneys and judicial officers that a child represented by a PGAL cannot even be cross-examined. There is no legal authority for this. Indeed, all legal authority is to the contrary.

Children testify in Utah juvenile court proceedings, and when they do, they often do under various circumstances (regarding child custody and parent-time) that are substantively indistinguishable from testifying in a child custody and parent-time in a divorce or district court child custody case. When district courts try to make a distinction between testifying in juvenile court and barring testimony in district court, they fail. They must. It is a distinction without difference.

I really do not understand why everyone frames (or tries to frame) asking questions of children who are the subject of a child custody and/or parent-time dispute as inherently harmful to children. One can ask certain questions that harm, or elicit answers that harm, but all forms of questioning are not innately harmful to children. Moreover, there is a level of harm that is, frankly, justified when the value of the testimonial evidence elicited is greater than the harm caused or that may be caused (it’s why we jail witnesses who are afraid to testify against the mob, yet put them in witness protection). Where there’s a will, there’s a way.

Unless they are very young, children are not so ignorant as to have no idea what is happening in a child custody dispute case. They know that if there is a dispute over custody that one parent will be unhappy. The children aren’t surprised when one parent or both parents try to lobby to support their candidacy for “best parent” or “custodial parent”. They aren’t surprised if a court wants to know what the children have experienced, how children feel, and what the children want on the subject of the child custody and parent-time awards.

There are clearly ways to obtain valuable evidence that children and only children are uniquely able to provide (in the form of their about their experiences, observations, feelings, opinions, preferences, and desires on the subject without it harming or unduly harming them.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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The Problem with Private Guardians ad Litem. Part 1 of 3

Utah Code § 78A-2-705 provides that, “The court may appoint an attorney as a private attorney guardian ad litem to represent the best interests of the minor in any district court action when: child abuse, child sexual abuse, or neglect is alleged in any proceeding, and the court has made a finding that an adult party is not indigent as determined under Section 78B-22-202; or the custody of, or parent-time with, a child is at issue.

What is a guardian ad litem? According to Black’s Law Dictionary, a guardian ad litem is a lawyer, appointed by the court to appear in a lawsuit on behalf of an incompetent adult or on behalf of a minor child party. At first blush, the concept of a guardian ad litem sounds pretty good, right? Unfortunately, the way private guardians ad litem (known as PGALs, for short) are utilized in Utah’s courts in child custody disputes is simply wrongheaded and contrary to the fundamental principles of fact finding, due process of law, and justice itself.

Given that children have the greatest stake in the custody and parent-time awards, I cannot see how any competent jurist could justify barring a sufficiently (sufficiently, not excessively) competent, intelligent, mature, and credible minor child witness (especially, but not exclusively, a child who wants to testify) from testifying on those subjects.

PGALs are not appointed for the purpose of ensuring a child never testifies on/for the record in his/her own words, yet that is what many GALs/PGALs believe (and they act accordingly). I’ve encountered PGALs and judges who object to children who want to testify–not because the children are incompetent or incredible or in serious danger if they testify, but “as a matter of general principle” (whatever that means).

PGALs are not witnesses (expert or otherwise). PGALs cannot testify, but most PGALs I know believe they can testify, nonetheless. Most PGALs I know believe that they are an exception to the hearsay rule. Most PGALs I know believe that one of the purposes of their appointment is ensuring a child’s own, unfiltered, un-summarized, direct, on the record testimony is never heard. This is wrong. PGALs claim that one of their roles is to prevent the child from getting involved in the case. This is wrong too.

Every witness (child or otherwise) is inherently involved to some degree or another in the case in which the witness testifies. Most witnesses (even party witnesses) are reluctant witnesses. It has been my experience that, as a lazy, disingenuous way to prevent any child of any age from testifying for the record, those who oppose child testimony define “harm’s a child” as synonymous with “child is reluctant” or “child might be reluctant” or “the child’s testimony could upset a parent and the parent might retaliate against the child” or “simply having to contemplate the subjects raised in the course of testifying is asking too much of any child.” These lazy, disingenuous people equate any and all testifying from the mouth of the child on the record with inherently causing the child harm.

I could easily identify a dozen Utah attorneys who, with a straight face, will unqualifiedly agree with the statement, “Any child who testifies directly on the record on the subject of the custody or parent-time awards that will apply to him/her is unduly harmed by his/her testifying.” It’s a fatuously overbroad contention and they know (or should know) it, but it’s not about coming up with sincere, good-faith opposition to child testimony, it’s about contriving what is labeled an excuse (plausible or otherwise) to prevent child testimony.

Another “reason” for banning on/for the record child testimony that a child’s preferences and desires do not control the custody and parent-time awards. That’s embarrassingly disingenuous. I am aware of no one ever arguing, “Once the child has testified for the record, the court is inexorably bound to award custody and parent-time as the child wants,” yet I have seen many memoranda that argue against child testimony on the “grounds” that a child should not testify because “the [child’s] expressed desires [regarding future custody or parent-time schedules] are not controlling.” (see Utah Code Section 30-3-10(5)(b)(i)).

It is not my purpose, in seeking the testimony of children on subjects relevant to the custody and parent-time awards, to harm those children. By the same token, unless child testimony is honestly found to be unduly harmful to a child, then a child should not be prevented from testifying simply because someone can think of any kind of harm–no matter how slight–that testifying might cause the child.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Why Do Utah Courts Not Allow Child Testimony?

I had lunch today with a former legal assistant of mine who is now a law student in Arizona. Over the summer he shadowed judges in Maricopa County during their family court rotations.

He told me that in Arizona the courts permit children over the age of 10 years to testify in child custody proceedings.

Are the Arizona courts administered by fools and sadists?

Or could it be that the Utah district courts’ near-universal aversion to any and all forms of on the record child testimony in child custody proceedings is a case of misplaced priorities?

Could it be that the way Utah courts use appointments of guardians ad litem and/or custody evaluators for the ostensible purpose of “speaking for” competent witness minor children

  • is a sophomoric euphemism for good old fashioned hearsay?
  • ironically results in silencing the most percipient witnesses (regarding issues in which they have the greatest stake)?

Could it be that GAL “reports” and “recommendations” that are based upon purported interviews with the minor child (when there is no objectively verifiable record of whether the interviews even took place, to say nothing of what was and was not asked and answered in the course of the alleged interview) are not fact or expert witness testimony (see State ex rel. A.D., ¶¶ 6 and 7, 6 P.3d 1137, 2000 UT App 216) and thus inherently not evidence?

Could it be that custody evaluator “expert testimony” and “recommendations” based upon purported interviews with the minor child (when there is no objectively verifiable record of whether the interviews even took place, to say nothing of what was and was not asked and answered in the course of the alleged interview) inherently can’t qualify as expert testimony (URE Rule 702 (Rules of Evidence))?

Special masters, parent coordinators, and the infantilization of parents

Special masters and parent coordinators (and co-parenting therapists, co-parent coaches/consultants, and their ilk) were invented for the purpose of unburdening courts from some of the conflict associated with domestic relations litigation. They fail to fulfill their purpose. They do not provide value for the money they charge. The parent(s) end up wasting money on a special master, parent coordinator, etc. while the disputes either persist or get worse (and sometimes it’s the involvement of the special master and parent coordinators who are to blame, either in full or in part). Besides, for most litigants a special master, parent coordinator, etc. is an expense they cannot (or should not) financially bear.

The idea that divorced parents need more than the laws currently on the books, the (lawful) orders in their divorce and child custody decrees, and the sensible use of law enforcement officers when warranted is to infantilize divorced and separated parents.

In the overwhelming majority of cases, anyone trying to sell you on a special master, parent coordinators, co-parenting therapist, co-parent coach, consultants, blah, blah, blah is either someone who offers such “services” and who is trying to sell them to you or a is a court trying to take the dispute out its lap and place it in someone else’s.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Pgals (Private Guardians Ad Litem) Are a Bad Idea.

Why?

You’ll hear the argument that a PGAL should be appointed for a child because we don’t want to traumatize children by having them testify on the record. Where is the evidence that a child testifying for the record so traumatizing to the child as to be unthinkable, causes irreparable damage, or that the value of the testimony is outweighed by the adverse effects on the child?

You’ll hear the argument that a judge is not qualified to question children. Oddly, you’ll hear that argument from the judge. And the argument is patent nonsense. Judges are authorized by the Utah Code to interview children. The Utah Code permits children to testify if and when they testify voluntarily. Does that come as any surprise?

You’ll hear the argument that what a child may say when questioned may go beyond scope of what is relevant. OK, that’s certainly possible, but it’s hardly unusual for a witness, adult or child, to testify beyond the scope of the examination. That’s been happening (and will continue to happen) with witnesses for centuries. When that happens with a child witness, objections are raised, the witness is instructed to stay within the scope of examination, we get back on track, and we move on. To suggest that children must not be questioned because they may ramble or talk about irrelevant things is silly.

You’ll hear the argument that the best way to ensure that a child’s voice is heard is by having someone else speak for the child (in the form of a PGAL). That argument is invalid on its face.

You’ll hear the argument that a PGAL has access to evidence and facts that the parties and/or court don’t. But that’s simply not true.

You’ll hear the argument that a PGAL can make arguments on behalf of a child in court. OK, sure, but why would that be a reason to prevent the child client from testifying for himself too? So that his/her testimony is known for the record unfiltered, complete, and unadulterated?  We don’t bar other people who are represented by attorneys from testifying.

You’ll hear the argument that a PGAL is a “trusted adult,” someone a child can talk to. But a judge isn’t a trusted adult a child can talk to?

You’ll hear the argument that a judge won’t hear from therapists or other collateral contacts while a PGAL will, but that’s simply not true. The bottom line is that PGALs are being appointed to prevent a child’s testimony from being obtained for the record, from being known for the record, to prevent that child’s testimony from being evidence on the record in the case, and thus to prevent that evidence from influencing the decision of the court. That’s indefensible.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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