The Dream & Reality:Expectations Placed on Those Who Represent Children in Family Court

11:00 a.m.-12:00 p.m.

Presented byBarbara Durden Davis, P.C. Jenny Schulz1200 Valley West Drive, Kids First Law CenterSuite 206-16 420 6th Street SE, Suite 160West Des Moines, Iowa 50266 Cedar Rapids, IA 52401Phone: 515-225-9300 Phone: 319-366-3308

Hon. Eliza Ovrom Ellen Ramsey-KacenaPolk Co. Courthouse 4403 First Avenue SE5th & Mulberry Suite 300Des Moines, Iowa 50309 Cedar Rapids, IA 52402Phone: 515-286-3889 Phone: 319-393-4683

2013 Family Law Seminar2013 Family Law Seminar

Friday, October 25, 2013Friday, October 25, 2013

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I. When to Ask for Appointment of a Child’s Representative

A. May be appropriate in cases involving the following allegations or concerns:

1. Request of extraordinary remedies such as supervised visitation, termination

or suspending parenting time, etc.

2. Relocation that could substantially reduce the child’s time with a parent or

sibling

3. Child’s concerns or views

4. Illegal drug or alcohol abuse by a child or a party

5. Disputed paternity

6. Child abduction or risk of future abduction

7. Domestic violence or child abuse

8. Mental health problems of the child or a party

9. Special physical, educational, or mental health needs of a child that require

investigation or advocacy

10. A high level of acrimony

11. Inappropriate adult influence or manipulation

12. Interference with custody or parenting time

13. A need for more evidence relevant to the best interests of the child

14. A need to minimize the harm to the child from the processes of family

separation and litigation

B. Potential Benefits of Involving a Child Representative:

1. Improves the judge’s ability to evaluate the best interests of the child

2. Cases resolve more quickly

3. Cases are more likely to settle

4. Cases are less likely to return to court

5. Families are connected with needed services

6. Children are exposed to less conflict

7. Parental communication improves

8. Family relationships are strengthened

9. Children have less anxiety (when questions are answered, they know what to

expect, and family situations improve)

10. Children have input

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C. Appoint GAL/Best Interests Attorney or Child’s Attorney? Consider:

1. Children’s age

2. The purpose of the appointment—what you want the focus to be

3. Manipulation to the child

4. Potential conflict between siblings

5. Overlap with roles of others involved (custody evaluator, child counselor)

6. Potential conflict between child’s wishes and best interests

II. The Duties of All Child Representatives

These duties apply to all child representatives, whether Child’s Attorney or Guardian ad

Litem (GAL)/Best Interests Attorney.

A. Accept Appointment

1. The attorney should obtain a clear order of appointment.

2. If the order is incompatible with ethical duties, the attorney should decline

appointment or inform the court and ask for clarification.

3. The same person can legally serve as guardian ad litem and attorney for the

child. Iowa Code 598.12(3). However:

a. If there’s a conflict between roles, must continue as the child’s attorney

and the court may appoint a GAL.

b. ABA Standards of Practice for Lawyers Representing Children in

Custody Cases says one person cannot perform both roles.

c. Can you perform both roles and comply with ethical rules?

B. Meet with the Child

1. Meet with the child before court hearings and upon significant events.

2. Make sure that communications fit the child’s age and developmental level.

3. Explain role.

4. Give counsel and advice.

5. Ask non-suggestive questions to ascertain child’s view.

6. Explain the nature and status of the legal proceeding in age-appropriate terms.

C. Investigate the Facts

1. Review the court file.

2. Remind other parties to copy you on pleadings and discovery.

3. Interview persons with knowledge of the child’s history and conditions.

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a. Make sure to obtain attorneys’ permission to speak with any represented

party.

4. Review relevant records.

D. Encourage Settlement

1. Consider and propose alternative dispute resolution methods.

2. Take any appropriate action to expedite the proceeding.

3. Review proposed settlements and explain to the court the basis for any

opposition.

E. Participate in Court

1. Make sure to identify role (GAL vs. Child’s Attorney).

2. Participate fully and do not merely defer to other parties.

3. Participate in any legal proceeding such as depositions, pretrial conferences,

and hearings.

4. File motions and responses.

5. Present and cross-examine witnesses and exhibits.

F. If the Child Participates in Court

1. If appropriate, make arguments and introduce evidence of the child’s

competency to testify, or to show the reliability of the child’s testimony or

out-of-court statements.

2. Prepare the child if the child will testify or meet with the judge.

3. Seek to minimize any harm to the child from the process such as having the

child testify in chambers without the parents present.

4. Possibly ask for restrictions on how questions are phrased to the child.

G. Protect the Child

1. Remedy conditions that deny a child stability and security.

2. Protect the child from litigation’s collateral damage.

III. The Unique Duties of Child Representatives

A. Child’s Attorney

1. Appointment under Iowa Code § 598.12(1)

2. Provides independent legal counsel for a child (represents “legal interests”)

and owes the same duties of undivided loyalty, confidentiality, and competent

representation as are due an adult client.

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3. Bound by all ethical rules:

a. Allocation of authority between lawyer and client

IRPC 32:1.2(a)

b. Confidentiality

IRPC 32:1.6

c. Conflict of interest (Note: siblings with fundamentally incompatible

outcomes create a conflict)

IRPC 32:1.7

d. Client with diminished capabilities

IRPC 32:1.14

4. Maintain attorney-client privilege (This is why the attorney cannot assume

any other role for the child once the attorney role is assumed.)

5. Maximize the child’s ability to direct the representation and abide by the

child’s decisions about the objectives of the representation:

a. If the child is unable to express objectives, advocate the child’s legal

interests.

b. If the child does not wish to express objectives, the attorney follows the

client’s directive of whether to take a position or remain silent.

c. If the child’s objectives would put the child at risk of substantial harm

(and are not merely contrary to the lawyer’s opinion of the child’s

interests), counsel the child. If unsuccessful, request appointment of a

Best Interests Attorney/GAL.

6. Child decides whether to testify or not after an informed discussion.

7. Appeal: Discuss with the child the possibility of an appeal. Appeal if there is

merit and the child wants to appeal the order.

B. GAL/Best Interests Attorney

1. Appointment under Iowa Code § 598.12(2)

2. Provides independent legal services for the purpose of protecting a child’s

best interests, without being bound by the child’s directive or objectives.

Investigative requirements under 598.12(2):

a. Interview the child before every court hearing

b. Interview both parents

c. Visit both parents’ homes

d. Interview any person providing medical, mental health, social,

educational, or other services for the child

e. Obtain firsthand knowledge of facts, if possible

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3. Bound by ethical rules except that there is no traditional attorney-client

relationship

a. The client is not the child, but the best interests of the child.

b. Siblings with conflicting views do not pose a conflict.

4. Practice differs as to confidentiality of client communications. The attorney

may use client confidences without disclosing the source.

5. Not bound by child objectives:

a. The attorney should advocate the child’s best interests (based on

objective legal criteria and not on the lawyer’s personal values and

biases).

b. Investigate the child’s views and report them to the court unless the

child requests not to.

c. The attorney will not necessarily advocate what the child wants.

6. GAL decides whether child testifies.

7. Appeal when:

a. The trial court’s decision is significantly detrimental to the child,

b. An appeal could be successful, and

c. The benefit to the child of an appeal outweighs the detriment of

extended litigation.

IV. Report/Recommendations/Testimony

A. All Representatives

1. Call and examine witnesses and offer evidence. Offer traditional evidence-

based legal arguments at hearings.

2. Report or recommendation is not admissible except by agreement or

stipulation of the parties.

In re Marriage of Gravatt, 365 N.W.2d 48, 49 (Iowa Ct. App. 1985);

In re Marriage of Anderson, 745 N.W.2d 95 (Iowa Ct. App. 2007)

(unpublished), citing:

o In re Marriage of Williams, 303 N.W. 2d 160, 163 (Iowa 1981)

(“Unless a social worker’s written report is properly before the court

by agreement or stipulation, it should not be considered after a

proper objection.”)

o In re Marriage of Reschly, 334 N.W.2d 720, 723 (Iowa 1983)

(noting a court-ordered custody investigation by a psychiatrist

should not have been considered at any stage of the proceedings

because it was hearsay).

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3. ABA Standards say that child representatives (Child’s Attorney or GAL) may

not testify, file a report, or make recommendations (not adopted in Iowa).

B. Child’s Attorneys

1. May not testify as a witness. In re Marriage of Joens, 284 N.W.2d 326, 329

(Iowa 1979). However, explaining what result a client wants or proffering

what you hope to prove is not testifying.

2. A report/recommendation is frowned upon: “The attorney is to investigate and

to secure the testimony of witnesses helpful to the cause of the children. There

is no provision that he ‘report’ or that he make recommendations. His findings

are not made admissible as evidence in the case.” In re Marriage of Joens.

C. GAL/Best Interest Attorneys

1. Whether GAL can testify as a witness has not been decided by Iowa courts.

Does testifying violate IRPC 32:3.7 (lawyer as witness)?

V. Qualifications and Training

A. Child representatives should have:

1. Familiarity with available services for children and families

2. Sufficient time to handle the case (average case takes 30 hours)

3. Experience (better chance of settlement)

4. Independence from either party

5. Adequate, ongoing training on:

a. Applicable law

b. Applicable guidelines and standards

c. Children’s development, needs, and abilities at different ages

d. Communicating with children

e. Presenting child testimony

f. Recognizing, evaluating and understanding evidence of:

(1) child abuse and neglect

(2) domestic violence

(3) substance abuse

—SAMPLE APPOINTMENT ORDER—

IN THE IOWA DISTRICT COURT IN AND FOR _____ COUNTY

IN RE THE MARRIAGE OF _______ AND _______ Upon the Petition of : : , : Equity No. : Petitioner, : : and Concerning : ORDER APPOINTING : ATTORNEY FOR CHILD , : : Respondent. : This matter comes before the Court on this ______ day of ____________, 2010. Upon review of the pending Motion and any opposition thereto, the Court finds that appointing an attorney for the child(ren) is necessary to help the Court decide the case properly because of ___(factors/allegations)____________________. Attorney _____________________ is hereby appointed as the attorney for the child(ren), __(name(s))_____, born __(date(s))_______. She will represent the child(ren) in a normal attorney-client relationship. She will not testify or submit a report to the Court. The parties or their attorneys shall send copies to Attorney __________ of all pleadings and discovery exchanges. She will participate as an attorney in all court proceedings. The parties shall ensure that Attorney _____________ has access to the child(ren). She shall also have access to confidential information about the child(ren) without the necessity of any further order or release. Such information includes but is not limited to social services, drug and alcohol treatment, medical, mental health, law enforcement, school, probate and court records, records of trusts and accounts of which the child(ren) is a beneficiary/are beneficiaries, and other records relevant to the case, including court records of parties. The parties shall be responsible for paying the fee to Attorney _________ as follows:

Petitioner shall pay $________. Respondent shall pay $________.

This fee shall be paid directly to (attorney name/address) , within 30 days. ___________________________________ Judge, Sixth Judicial District of Iowa

—SAMPLE APPOINTMENT ORDER—

IN RE: THE MARRIAGE OF ____________ AND ____________ UPON THE PETITION OF ____________________, Petitioner, AND CONCERNING, ____________________, Respondent.

) ) ) ) ) ) ) ) ) ) ) )

No. ____________________

ORDER APPOINTING ATTORNEY FOR CHILD FOR A LIMITED PURPOSE

This matter comes before the Court on this ______ day of ________________, 2011. Upon review of Respondent’s Motion, and any resistance thereto, the Court finds that appointing an attorney for the child for a limited purpose is necessary in order to facilitate the child’s testimony in the least harmful way. Attorney ______________________ is hereby appointed as the attorney for the child, __________________, born _______________. Pursuant to Court Rule _____, the attorney is appointed to represent the child in a normal attorney-client relationship for the limited purpose of: ascertaining if the child would like to testify, and if so, preparing and assisting the child in testifying as well as making any requests to the parties or court concerning the child’s testimony. She will not testify or submit a report to the Court. The parties or their attorneys shall send copies to the Child’s Attorney of all pleadings and of discovery exchanges concerning the child’s testimony. The parties shall ensure that the Child’s Attorney has access to the child. She shall also have access to confidential information about the child without the necessity of any further order or release. Such information includes but is not limited to social services, drug and alcohol treatment, medical, mental health, law enforcement, school, probate and court records, records of trusts and accounts of which the child is a beneficiary, and other records relevant to the case, including court records of parties. The parties shall be responsible for paying the fee of $_____ to Attorney ________. The

parties’ individual shares of the responsibility for the fee are as follows: Petitioner to pay ____% and Respondent to pay ____%.

The attorney will represent the child without payment.

___________________________________ Judge

IOWA CODE § 598.12: ATTORNEY OR GUARDIAN AD LITEM FOR MINOR CHILD—INVESTIGATIONS. 1. The court may appoint an attorney to represent the legal interests of the minor child or children of the parties. The attorney shall be empowered to make independent investigations and to cause witnesses to appear and testify before the court on matters pertinent to the legal interests of the children.

2. The court may appoint a guardian ad litem to represent the best interests of the minor child or children of the parties.

a. Unless otherwise enlarged or circumscribed by a court or juvenile court having jurisdiction over the child or by operation of law, the duties of a guardian ad litem with respect to a child shall include all of the following:

(1) Conducting general in-person interviews with the child, if the child's age is appropriate for the interview, and interviewing each parent, guardian, or other person having custody of the child, if authorized by the person's legal counsel.

(2) Conducting interviews with the child, if the child's age is appropriate for the interview, prior to any court-ordered hearing.

(3) Visiting the home, residence, or both home and residence of the child and any prospective home or residence of the child, including visiting the home or residence or prospective home or residence each time placement is changed.

(4) Interviewing any person providing medical, mental health, social, educational, or other services to the child, prior to any court-ordered hearing.

(5) Obtaining firsthand knowledge, if possible, of facts, circumstances, and parties involved in the matter in which the person is appointed guardian ad litem.

(6) Attending any hearings in the matter in which the person is appointed guardian ad litem.

b. The order appointing the guardian ad litem shall grant authorization to the guardian ad litem to interview any relevant person and inspect and copy any records relevant to the proceedings, if not prohibited by federal law. The order shall specify that the guardian ad litem may interview any person providing medical, mental health, social, educational, or other services to the child; may attend any meeting with the medical or mental health providers, service providers, organizations, or educational institutions regarding the child, if deemed necessary by the guardian ad litem; and may inspect and copy any records relevant to the proceedings.

3. The same person may serve both as the child's legal counsel and as guardian ad litem. However, the court may appoint a separate guardian ad litem, if the same person cannot properly represent the legal interests of the child as legal counsel and also represent the best interests of the child as guardian ad litem, or a separate guardian ad litem is required to fulfill the requirements of subsection 2.

4. The court may require that an appropriate agency make an investigation of both parties regarding the home conditions, parenting capabilities, and other matters pertinent to the best interests of the child or children in a dispute concerning custody of the child or children. The investigation report completed by the appropriate agency shall be submitted to the court and available to both parties. The investigation report completed by the appropriate agency shall be a part of the record unless otherwise ordered by the court.

5. The court shall enter an order in favor of the attorney, the guardian ad litem, or an appropriate agency for fees and disbursements, and the amount shall be charged against the party responsible for court costs unless the court determines that the party responsible for costs is indigent, in which event the fees shall be borne by the county.

In re Marriage of Anderson, No. 7-779 / 07-0159, Iowa Ct. App. (12/28/07)

…On July 26, 2007, Christine [mother] filed an application, under Iowa Code section 598.12(1) (Supp. 2005), for the appointment of a guardian ad litem (GAL) for Camden [child].…The district court appointed Christine Sand, an attorney, as “guardian ad litem” pursuant to section 598.12(1), and capped her fees at $500. Sand filed an initial report and was prepared to file a supplemental report. Immediately prior to the trial on November 1, 2006, Steven [father] objected to the court’s consideration of Sand’s reports.

The district court ruled that Sand’s report was to be stricken and removed from the court file, and the supplemental report could not be filed. The court also ruled Sand could not testify as a witness. The court determined Sand’s role was limited under section 598.12, and she could only call and/or question witnesses. Sand did not call any additional witnesses. She questioned Steven briefly about his prior marijuana use. After that she asked to be excused. The court stated, “Sure. Unless you want to stay and participate. No. You’re excused.” …

Christine raises several issues regarding the scope of the duties of Sand in this case. She claims the district court should not have stricken Sand’s reports, she should have been allowed to call Sand as a witness, and Sand should not have been dismissed from the trial.

We note there is an inherent inconsistency in the application and order appointing attorney Sand in this case. Christine requested the appointment of a GAL, but cited to section 598.12(1), which provides “[t]he court may appoint an attorney to represent the legal interests of the minor child or children of the parties.” The court’s authority to appoint a GAL is found in section 598.12(2).1 The court’s order stated, “upon Respondent’s request that the Court appoint a Guardian ad Litem for the minor child of the parties, Camden Anderson, as provided for in Iowa Code § 598.12(1), this Court finds that said request is appropriate and should be granted.”

Section 598.12(1) applies to a child’s attorney and provides, “The attorney shall be empowered to make independent investigations and to cause witnesses to appear and testify before the court on matters pertinent to the legal interests of the children.” In considering this statute, the supreme court has stated:

Significantly the attorney is to investigate and to secure the testimony of witnesses helpful to the cause of the children. There is no provision that he “report” or that he make recommendations. His findings are not made admissible as evidence in the case. It appears the legislature recognized that in the rancor and bitterness of a custody fight parents might well be insensitive to the best interests of their children. It provided that the children have representation separate and apart from either parent.

In re Marriage of Joens, 284 N.W.2d 326, 329 (Iowa 1979). An attorney for a child may not testify as a witness. In re Marriage of Gaumer, 303 N.W.2d 136, 138 (Iowa 1981). A report or recommendation of the attorney for a child may be considered by the court only by the agreement or stipulation of the parties. Joens, 284 N.W.2d at 329; In re Marriage of Gravatt, 365 N.W.2d 48, 49 (Iowa Ct. App. 1985).

                                                            1 Section 598.12(2) provides, “The court may appoint a guardian ad litem to represent the best interests of the minor child or children of the parties.”

Christine argues Sand was actually appointed as a GAL under section 598.12(2). A GAL has more extensive duties, including interviewing the parties, visiting the home, interviewing others providing services to the child, and “[o]btaining firsthand knowledge, if possible, of facts, circumstances, and parties involved in the matter.” Iowa Code § 598.12(2)(a). We note, however, that section 598.12(2)(b) provides that the order appointing a GAL must give the GAL authority to interview witnesses, and copy and inspect records. The order in this case did not give Sand authority to do these things. Furthermore, the code section cited by the court in appointing Sand was section 598.12(1). We conclude Sand was not appointed as a GAL under section 598.12(2); she was appointed to be an attorney for the child, under section 598.12(1).

Even if Sand had been a GAL, her report would still be inadmissible as hearsay. The supreme court has stated, “Unless a social worker’s written report is properly before the court by agreement or stipulation, it should not be considered after a proper objection.” In re Marriage of Williams, 303 N.W.2d 160, 163 (Iowa 1981). See also In re Marriage of Reschly, 334 N.W.2d 720, 723 (Iowa 1983) (noting a court-ordered custody investigation by a psychiatrist should not have been considered at any stage of the proceedings because it was hearsay).

We conclude the district court properly did not consider the report filed by Sand or her proposed supplemental report. In addition, the court properly found Sand could not testify as a witness. As to Sand’s participation in the hearing, we find Sand asked to be excused, and there was no objection by the parties prior to her departure. Therefore, error has not been preserved on the issue of Sand’s participation in the hearing. See Hill v. Fleetguard, Inc., 705 N.W.2d 665, 670 (Iowa 2005) (noting we do not consider issues raised for the first time on appeal).