Guardians ad Litem and the Best Interests of the Child

The respective roles of a Guardian ad Litem and of minor’s counsel are different, and the mandates governing the legal representation provided by Guardians ad Litem differ from those governing the representation provided by minor’s counsel.

Guardians ad Litem are mandated to represent the “best interests of the child” whereas the role of minor’s counsel is simply to represent the expressed views of the child, supposedly as an unfiltered “voice of the child” in the Court proceedings.

The roles and mandates of Guardians ad Litem (GAL) and minor’s counsel are different.

In a prior post I addressed the highly problematic features associated with the appointment of minor’s counsel (see The Appointment of Minor’s Counsel Must Stop). In this current post I will address issues surrounding the role of a Guardian ad Litem for the child. Since the Guardian ad Litem is tasked with representing the “best interests” of the child the problems discussed in association with minor’s counsel do not apply.

The Guardian ad Litem’s role in providing legal representation for the child’s “best interests” can serve an important and valuable function in the legal setting and can be coordinated effectively with the role of mental health professionals to resolve the family’s psychopathology. The primary issue surrounding Guardians ad Litem is in defining the criteria by which the “best interests of the child” is to be defined.

Best Interests of the Child

By what criteria are the “best interests of the child” defined?  This is a complex and challenging question; but it is not an impossible question, and it is a question that professional mental health must begin to address.

We cannot act in the child’s “best interests” if we don’t first know what those “best interests” are. How do we define what the child’s “best interests” are? Nowhere has an operational definition been proposed for how the construct of the child’s “best interests” should be defined.

By analogy to the legal system, the absence of an operational definition for a construct is like saying that we shouldn’t do anything illegal, yet we never define the laws for what represents legal and illegal activity. We then go about deciding on a case-by-case basis what the definition of “illegal” is without any guidance from underlying laws and legal principles.

This is essentially what we are doing with the construct of “best interests” in mental health. We have no established definition, or even criteria, by which we can define what the construct of the child’s “best interests” mean, so that we must then we go about defining this vague and nebulous construct on a case-by-case basis without any guiding principles or foundations.

By analogy, this is like defining the term “illegal” without any guiding principles or foundations provided by underlying laws and legal structures.

While we can never achieve precision in defining what the construct of “best interests” entails, and while decisions will still need to be made on a case-by-case basis for the unique situation of each child, we can nevertheless achieve greater clarity regarding the basic principles on which a decision regarding the child’s “best interests” are to be made.

Again, by analogy, while we will always need Courts to make determinations of what represents legal and illegal activity on a case-by-case basis, we can nevertheless create an underlying structure of laws and procedures that guides the endeavor to define the construct of “illegal”.

So too, while we will always need to make determinations of what represents the child’s “best interests” on a case-by-case basis, we can nevertheless create, through professional level dialogue regarding established psychological principles and scientific evidence, an underlying structure and foundation to guide our efforts to operationally define the construct of the child’s “best interests”.

The Domains and Factors

It is beyond the scope of a blog post to define such a complicated construct. However, I can begin to identify some of the general domains involved.

Foundational Domains

Developmental Sensitivity: Children’s emotional and psychological needs change based on their age and the developmental period. Identifying the “best interests” of the child requires a full understanding for specific features of the differing developmental periods during childhood and adolescence and the changing needs of children based on these ever-changing, ever-emerging developmental periods.

Parental Qualities: The child’s healthy or unhealthy development is highly dependent on the qualities of parenting the child receives. Identifying the “best interests” of the child requires a full understanding for how parenting affects child development and for the specific qualities associated with healthy and toxic parenting practices.

Secondary Domains

Interaction Effects: The demands on parenting change based on the child’s developmental period. For example, young children benefit from the calm and confident assertion of parental authority that provides children with a sense of security, while adolescents benefit from parenting that includes increased respectful dialogue and negotiation that recognizes the increasing developmental autonomy of the adolescent.

Balancing Alternatives: A perfect situation is seldom available, so that determining the “best interests” of the child often involves comparative judgments regarding the options available. This increases the demands on the professional who must possess a high level of understanding for the primary dimensions of child developmental needs and parental influences in order to compare and balance the relative importance of factors.

Tertiary Domains

Unique Situational Factors: Within the context of Foundational and Secondary Domains, the professional must also evaluate the impact across these primary and secondary domains of unique situational factors, such as special medical issues with the child or the unique psychological needs of the child.

Additional Considerations: The degree to which additional considerations, such as financial stability and material comforts, cultural factors, or unique issues of family history are considered relative to the “best interests” of the child merits additional dialogue and discussion.

The determination of the child’s “best interests” is a complex undertaking that requires a high degree of professional expertise in child development and mental health issues.  To expect an attorney to possess this complex psychological and mental health expertise is unreasonable, just as it would be unreasonable to expect a psychologist to understand the extensive information of the legal field.

Guardians ad Litem then need to interface closely and cooperatively with the mental health profession in order to access the professional expertise necessary for fulfilling the required role of the Guardian ad Litem to represent the “best interests” of the child.

The close collaborative relationship that attorneys acting the the capacity of Guardian ad Litem for a child must maintain with mental health places professional responsibilities on the attorney to possess some understanding of the mental health issues involved in order to allow informed dialogue to occur.

Standards of Practice

Mental health professionals who work in the context of the legal system are required to possess a fundamental understanding for the legal system as a component of their professional competency.

Both the American Psychological Association (2010; 2013) and the Association of Family and Conciliation Courts (2006; 2010) have produced guidelines for mental health professionals who interface with the legal system.

American Psychological Association, (2013) Specialty Guidelines for Forensic Psychology. American Psychologist, 68, 7-19.

American Psychological Association. (2010) Guidelines for child custody evaluations in family law proceedings. American Psychologist, 65, 863-867.

Association of Family and Conciliation Courts. (2006) Model standards of practice for child custody evaluation. Madison, WI: Author.

Association of Family and Conciliation Courts. (2010) Guidelines for Court-Involved Therapy. Madison, WI: Author.

Yet no equal and commensurate guidelines have been produced by the American Bar Association or the Association of Family and Conciliation Courts regarding the necessary training in mental health issues involving children and families needed by attorneys who interface with the mental health system as Guardians ad Litem for children. 

Given the extensive child developmental and mental health expertise necessary to make a responsible determination of the child’s “best interests,” commensurate and equal professional guidelines from the American Bar Association and Association of Family and Conciliation Courts for attorneys who serve as Guardians ad Litem need to be developed that outline:

1)  The foundational knowledge base in child development and family mental health issues necessary to dialogue and interface effectively and collaboratively with mental health professionals

2 )  The procedures used in making determinations regarding children’s “best interests”

3)   The general criteria to be used in making determinations regarding children’s “best interests”

Foundational Knowledge Base

Making decisions regarding the “best interests” of the child can have such a profound and permanent impact on the child’s developmental trajectory and life outcomes that it represents an awesome professional responsibility.  Asking that attorneys who are acting in such a powerful and responsible position possess at least a professional-level familiarity with relevant developmental and mental health family constructs represents both a reasonable and rational approach to addressing the awesome responsibility involved in making determinations regarding a child’s “best interests,” determinations that can have an incredibly profound and permanent impact on a child’s life.

Even if the Guardian ad Litem relies on the opinions and judgments of mental health professionals, the inherent professional responsibility of the Guardian ad Litem should require at least a professional-level familiarity with the relevant psychological constructs in order to allow for informed dialogue with mental health professionals.  This would be commensurate with the expectations of mental health professionals who interface regularly with the legal system to understand basic procedures and issues relevant to the legal system in order to function collaboratively within that system

Standard 2.04 of the Specialty Guidelines for Forensic Psychology of the American Psychological Association regarding “Knowledge of the Legal System and the Legal Rights of Individuals” requires that,

Forensic practitioners recognize the importance of obtaining a fundamental and reasonable level of knowledge and understanding of the legal and professional standards, laws, rules, and precedents that govern their participation in legal proceedings and that guide the impact of their services on service recipients.”

It is reasonable to expect that attorneys who interface regularly with mental health professionals in determining the “best interests” of the child, which requires a high level of expertise in relevant developmental and family mental health constructs, possess an equal and commensurate “fundamental and reasonable level of knowledge and understanding” regarding the developmental and family mental health constructs and principles that guide the determination of the child’s “best interests.”

Furthermore, mental health professionals are also required to coordinate their professional activities within the legal system in a way that does not “threaten or impair” the legal rights of individuals within the legal context.

“Forensic practitioners aspire to manage their professional conduct in a manner that does not threaten or impair the rights of affected individuals.  They may consult with, and refer others to, legal counsel on matters of law.” (APA, 1010; Standard 2.04)

An equal and commensurate standard regarding the professional responsibilities of Guardians ad Litem to interface effectively with the child’s family therapy is a similarly reasonable expectation.

Recommended Domains of Knowledge

I would offer the following domains as necessary for the reasonable interface of attorneys acting as a child’s Guardian ad Litem with the mental health system in order to responsibly fulfill their role of determining the child’s “best interests”:

Developmental Knowledge:  A foundational understanding for the qualities and characteristics of the developmental phases of childhood and adolescence

Family Systems Constructs:  A basic understanding for established family systems constructs of homeostasis, triangulation, boundaries and enmeshment, the role of child symptoms in conferring power within the family, and the indicators of cross-generational parent-child coalitions

Parental Psychopathology:  Centering on personality disorder traits that can severely impact parenting and family dynamics. Of particular note is the importance of understanding and recognizing narcissistic and borderline parental psychopathology as these have a particularly toxic effect on children and family relationships and often go unrecognized and unnoticed by untrained and unfamiliar professionals (the presence of prominent narcissistic and borderline personality traits in a parent can raise child protection concerns)

The Attachment System: A foundational understanding for the nature of the attachment system, its characteristic features, and its display in both healthy parent-child relationships and distorted parent-child relationships

Communication Dynamics:  The relationship and communication dynamics by which parental influence on the child is achieved, including constructs of parental attunement and misattunement, parental emotional signaling, and role-reversal parent-child relationships.

Neuroscience of Child Development: An appropriate level of familiarity with current neuroscience regarding the socially mediated development of the brain during childhood, particularly regarding the healthy developmental importance of breach-and-repair sequences (i.e., parent-child conflict) and the central role of parental empathy (i.e., “intersubjectivity”) in healthy child development

Online seminars in these domains could be developed through the collaborative expertise of the American Psychological Association and the American Bar Association to ensure that attorneys serving as Guardians ad Litem for children possess the requisite “fundamental and reasonable level of knowledge and understanding” in the relevant domains necessary for making a professionally responsible and informed determination regarding the “best interests” of the child. 

Scientific Foundation

Mental health professionals who interface regularly with the legal system are required to base their opinions on “adequate scientific foundation, and reliable and valid principles and methods”.

Specialty Guidelines for Forensic Psychology: Standard 2.05 “Knowledge of the Scientific Foundation for Opinions and Testimony”:

“Forensic practitioners seek to provide opinions and testimony that are sufficiently based upon adequate scientific foundation, and reliable and valid principles and methods that have been applied appropriately to the facts of the case.”

Attorneys who are making determinations of the child’s best interests” that can significantly impact the developmental trajectory of the child throughout the remainder of the child’s life, should be held to a similar standard for anchoring their professional responsibilities in “adequate scientific foundation and reliable and valid principles and methods that have been applied appropriately to the facts of the case.”

Craig Childress, Psy.D.
Clinical Psychologist, PSY 18857

References

American Psychological Association, (2013) Specialty Guidelines for Forensic Psychology. American Psychologist, 68, 7-19.

American Psychological Association. (2010) Guidelines for child custody evaluations in family law proceedings. American Psychologist, 65, 863-867.

Association of Family and Conciliation Courts. (2006) Model standards of practice for child custody evaluation. Madison, WI: Author.

Association of Family and Conciliation Courts. (2010) Guidelines for Court-Involved Therapy. Madison, WI: Author.

One thought on “Guardians ad Litem and the Best Interests of the Child”

  1. Excellent points. HG Beverly has written about this. I wish it would be this simple; however. It seems not just a few GALs are disinterested in what is healthy or right. In fact, my daughter’s GAL actually knowingly and purposefully lied in front of the judge. My attorney was upset that he was a GAL, she said he did not to his job (in addition to the lie), but she seemed to accept that attorneys lie about a parent to the judge. My ex husband, who secured emergency custody under false allegations, was bringing our daughter to court even when she was not supposed to be there (taking her out of school). I got the impression my daughter was submitting to her dad’s manipulations and that the GAL was trying to be a buddy with my daughter in spite of all the things that pointed to something being very wrong with the picture my ex and his 5th was were trying to paint. When GALs don’t even have scruples, and those in the profession look the other way, then they, unfortunately, will not care about your excellent research and common-sense solutions. Single moms who have not remarried have a hard time of affording any semblance of justice. Thank you for what you are doing — someone who does care will respond.

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