[*PG283]LETTING DOWN THEIR GUARD: WHAT GUARDIANS AD LITEM SHOULD KNOW ABOUT DOMESTIC VIOLENCE IN CHILD CUSTODY DISPUTES
Abstract: Children who are exposed to adult domestic violence frequently suffer long-term negative consequences as a result. Consequently, courts and legislatures have begun to consider the perpetration of domestic abuse as an important factor in private child custody disputes. Yet guardians ad litem, who are appointed with increasing regularity in these cases, are often inadequately prepared to recognize and address this complicated issue. This Note looks at the historical use of guardians ad litem, as well as the current understanding of connections between domestic violence and child custody disputes, and concludes that with adequate standards and guidelines in place, guardians ad litem could help protect children who are exposed to domestic violence from further harm. The Note concludes with a set of recommended uniform guidelines that could be adapted to each state’s particular system of guardian ad litem use to protect children from further exposure to domestic abuse.
In my first meeting with the guardian ad litem, I had told him that there was a significant history of domestic violence, [that] my ex-partner had been to [a batterer’s intervention program] and that I was disabled as a result of the abuse, and he told me. “No one cares about that abuse crap.”
Lorie suffered years of severe violence at the hands of her husband, Noah.1 He pulled out her hair, slapped her, tore her clothing, and threatened her life.2 He hit her in the face with his head so hard that he [*PG284]broke her tooth.3 Lorie and Noah’s children lived with the ongoing abuse and often witnessed the violence.4 During one incident, Lorie was holding their baby in her arms when Noah picked up a butcher knife.5 “Put the kid down,” he said, “I’m going to kill you now.”6
When litigation began over custody of their children, Lorie was prepared with evidence of the abuse, including dental records documenting her broken tooth and written statements of observers who witnessed the abuse and her injuries.7 The guardian ad litem appointed to her case, however, refused to look at any of the documentation she offered.8 Furthermore, during the investigation he said to Lorie, “I know you lied to me [about the abuse]. You better tell the truth now, because I’m getting phone calls from people and they can tell me the truth.”9
Ignoring the trauma of the abuse Lorie suffered, the guardian ad litem’s report to the judge described Lorie as “irrationally angry” and “overly emotional,” citing her tendency to burst into tears.10 The guardian ad litem also discredited Lorie’s reports of domestic violence to the court, despite his own acknowledgement that he found Noah to be controlling, domineering, and dishonest.11 The court ultimately granted Noah full custody of the children.12 The judge never saw Lorie’s extensive documentation, and thus could not consider the impact of Noah’s abusive behavior on the children.13
Considering their role in custody cases, it is disquieting that guardians ad litem (GALs) are often unaware of the dynamics of domestic violence or insensitive to its impact on children.14 Perhaps it [*PG285]should not be surprising, though.15 After thirty years of advocacy, society is only just beginning to recognize the pervasive and devastating impact of partner abuse.16 In addition, only in the last ten years have we begun to recognize the consequences of partner abuse on children.17
The court system trusts GALs, like Lorie’s, to help ensure that children are protected during custody disputes.18 Courts are appointing GALs with increasing regularity in cases where custody is contested.19 Many, if not most, of these custody disputes involve a history of domestic violence.20 In addition, the presence of partner abuse in a dispute [*PG286]increases the likelihood that a judge will appoint a GAL.21 Therefore, GALs are likely to influence the outcome of a significant number of custody disputes involving domestic violence.22 When GALs lack understanding or are simply inattentive to the repercussions of partner abuse, they may adversely affect a significant number of custody decisions.23
Yet GALs can play a positive role in these cases.24 GALs who have training and experience with partner abuse may be in the best position to ensure that courts are aware of any history of domestic violence.25 They can bring to courts’ attention evidence of abuse that parents or attorneys may be reluctant to introduce, use their investigation to determine the effects of exposure to domestic violence on children, and make recommendations that address any safety concerns of children and abused parents.26
Therefore, this Note proposes that despite current problems with the GAL system, simple reforms could enable the appointment of GALs in custody cases involving domestic violence to benefit courts, litigants, and especially children. Part I provides a history of the judicial system’s use of GALs to protect the interests of children and discusses the cur[*PG287]rent status of their use in private child custody litigation. Part II presents a brief overview of the widespread problem of domestic violence, paying particular attention to its impact on children. Part II also explains why domestic violence continues to be an issue even in a post-separation context, and how the dynamics of abuse affect disputes over custody. Part III examines the influence of GALs in cases involving domestic violence, which currently tends to be more problematic than beneficial for the children whose interests GALs are meant to protect. This section also argues, however, that with reforms, the GAL system should be retained in child custody disputes involving domestic violence. With that in mind, Part IV proposes several model guidelines for GALs that, if adopted by a state court, would increase the safety and well-being of the adult and child victims of battering during custody disputes.
The contemporary use of GALs in child custody and visitation disputes developed from a long judicial tradition of appointing a representative for individuals deemed incapable of protecting their own interests in a lawsuit.27 A review of the historical roots of this tradition shows that the purpose of appointing GALs for children has expanded over time.28 While the motivation to appoint GALs for children was originally limited to the protection of a child’s financial interests, modern courts are now likely to appoint a representative when they have concerns for a child’s safety or well-being.29 In addition, developments in the mental health field regarding the effect of divorce on children have led to an increasing use of GALs in the family law context.30 Finally, although American courts have utilized GALs since this country’s inception, a survey of the current status of GAL use in the context of private child custody disputes31 demonstrates that there are still many unsettled and even controversial aspects of the GAL role.32
The concept of appointing guardians for the legally incompetent originated in Roman law, and the practice later was incorporated into English common law.33 The judicial tradition of appointing GALs stems from the English doctrine of parens patriae,34 which established the king as the protector and general guardian of all “infants, idiots, and lunatics.”35 The king could also delegate his authority to a guard[*PG289][*PG288]ian through a court appointment.36 Since the doctrine was primarily used as a means for the king to protect his economic interests in his lands, parens patriae authority was rarely invoked for children unless they were dependants of the landed gentry.37
Subsequently, American courts adopted both the mantle of parens patriae and the inherent power to appoint GALs when the situation warranted.38 American courts, however, abandoned the economic motives behind parens patriae in favor of a child welfare perspective.39 Parens patriae thus imbued the state and its courts with the responsibility to protect the safety and well-being of children.40
Until the mid-twentieth century, it was assumed that the court, as an arm of the state, would sufficiently protect the welfare of children.41 The 1967 U.S. Supreme Court case of In re Gault, however, challenged that assumption.42 Gault established for the first time that children have a constitutional right to counsel in juvenile delinquency proceedings, implicitly asserting that any protection provided solely by the court was insufficient.43 Consequently, after Gault, the use of GALs to protect the interests of children in litigation gained significant momentum.44
Once accepted in the juvenile court system, GALs next gained widespread use in abuse and neglect cases.45 During the 1960s and 1970s, concern about the issue of child abuse in the family attracted [*PG290]new prominence.46 The courts shared this concern and consequently began appointing GALs to protect children in abuse and neglect proceedings.47 The passage of the Child Abuse and Neglect Prevention and Treatment Act in 1974 further encouraged the use of GALs to protect the safety and well-being of children.48 The Act required state recipients of federal funding to ensure, through statutory provisions, that every child affected by an abuse and neglect proceeding had access to a GAL.49
While the use of GALs gained favor in the realm of abuse and neglect cases, a similar movement began in the family courts.50 Developments in mental health and child psychology suggested that divorce and custody disputes had negative consequences on the emotional and psychological well-being of the children involved.51 The advent of no-fault divorce also had increased the contentiousness of custody proceedings.52 Therefore, judges presiding over child custody disputes began to appoint GALs for minors in order to ensure that children’s interests were adequately protected.53
The first recorded use of a GAL in a private child custody dispute took place in Wisconsin.54 In Edwards v. Edwards, the Wisconsin Supreme Court remanded the divorce suit for further hearing with a recommendation that the trial court appoint a GAL for the minor children of the parties.55 Following this decision in 1955, the state supreme court persisted in suggesting the appointment of GALs to protect the interests of minor children in custody disputes.56 Initially, the language of the court’s opinions merely reminded the trial court of its responsibility to protect the welfare of children, implicitly suggesting a need for further protections such as those provided by a GAL.57 In subsequent cases, however, the court used increasingly authoritative language to require the appointment of GALs in this context.58
The Wisconsin Supreme Court continued to advocate for the mandatory appointment of GALs until 1971.59 By that time, the Wisconsin legislature had considered several bills that would have mandated the appointment of a GAL in all divorce-related actions involving children, but each bill was defeated.60 As a result, in 1971, the state supreme court invoked its rule-making power to mandate the appointment of a GAL whenever the trial court had special concerns for the welfare of minor children.61 That rule was eventually codified [*PG292]and became the nation’s first statute to require the appointment of a GAL in custody disputes arising in domestic relations cases.62
Currently, every jurisdiction has a mechanism for the appointment of a representative to protect the interests and well-being of children affected by divorce, custody, and visitation litigation.63 Appointment of a GAL is usually discretionary, especially in child cus[*PG293]tody disputes.64 Only Wisconsin mandates the use of GALs in all domestic relations cases,65 although a few other states also require their use in particular circumstances.66 Each state, however, has vastly different requirements as to whom may be appointed, under what circumstances, and what the appropriate role of that person should be.67
Defining the role of the GAL is a difficult task.68 In general terms, a GAL is a legal representative appointed by the court to protect a child’s best interests in litigation before the court.69 Beyond that, the definition greatly varies depending on the jurisdiction and the type of case involved.70 To further confuse matters, courts and commentators often loosely apply the term “guardian ad litem” to various kinds of representatives serving disparate functions.71
State statutes generally control who may serve as a GAL in a custody case.72 Where no statute exists, court rules and case law provide guidance as to who may be appointed and when.73 For example, many states require GALs to be attorneys, while other states allow discretionary appointments of social workers, mental health experts, and other similarly-licensed professionals.74 Still other states allow lay vol[*PG295][*PG294]unteers to serve in the role.75 Expertise in a particular area, such as domestic violence, may be a factor in the judge’s decision as to whom to appoint, but consideration of specialized knowledge is generally not a statutory or regulatory requirement.76
The variations in local requirements reflect the states’ differing interpretation of the necessary functions of GALs.77 The particular knowledge, skills, and experience required to perform as a GAL in a certain jurisdiction will largely influence whom the courts may appoint to serve in that capacity.78 It may also account for some of the differences in states’ GAL training requirements.79 Some jurisdictions require forty hours of pre-appointment training, while others require no training at all.80 Even those states that do require training for GALs generally do not include specific training on domestic violence issues.81
While a few state statutes define the expected duties and role of GALs, most do not.82 In addition, many states do not have court-enacted guidelines or standards in place detailing the functions of GALs.83 Thus, GALs may be expected to function in roles as varied as attorney, investigator, evaluator, party, witness, mediator, or in any combination of these roles.84 Because of the lack of uniformity in these roles, the duties performed by GALs are likely to vary, not only from state to state, but often even from court to court.85 Due in part to this lack of clarity in the GAL’s role, many states have considered reforming the GAL system.86 The recommendations, however, rarely involve abolishing the GAL system altogether.87 Instead, the focus is on improvement of the system through the implementation of standards and guidelines that would provide guidance to GALs in fulfilling their role.88
To understand why GALs must be familiar with the dynamics of domestic abuse in order to do their work effectively, it is important to understand the prevalence of the problem and, in particular, the ways in which it can impact child custody litigation.89 The next section will therefore look more closely at the epidemic of battering, incidents of separation assault, the relationship between custody litigation and domestic violence, and how battering affects the children who are exposed to it.90
Domestic violence, culture, and the law share an interactive relationship.91 Domestic violence and the cultural assumptions surrounding it influence the substance of the law and affect the process of litiga[*PG297][*PG296]tion, which, in turn, affects cultural perceptions of domestic violence.92 Law, therefore, has a unique ability to influence both the incidence and understanding of domestic violence.93
This relationship between domestic violence, culture, and the law is particularly evident in custody litigation, where domestic violence both influences the law and is affected by the outcome of litigation.94 In this context, the cultural assumptions of actors in the legal system, including GALs, can have a strong positive or negative effect on the messages communicated to parents and children about the acceptability of violence in the home.95 Thus, a GAL’s misunderstanding or denial of the extent, nature, and impact of domestic violence in and on families has the potential to result in serious harm.96
Domestic violence97 is a widespread problem, one that many have described as an epidemic.98 Nationally, it has garnered the attention of the President, Congress, the U.S. Supreme Court, various governmental bodies, and numerous professional associations.99 Each has recognized that domestic violence is a pervasive problem with a devastating impact on individuals, families, and society.100 While precise statistics on the incidence of domestic violence are difficult to gather, available numbers suggest alarming levels of abuse.101 Some reports estimate that 960,000 episodes of violence are perpetrated each year by current or former intimate partners, while others suggest that as many as four million women are physically abused each year by a husband or boyfriend.102 Nearly one-third of American women report having experienced domestic violence by a male partner at some point in their [*PG299][*PG298]lives.103 In many cases, the violence is fatal: in the past twenty-five years, there were 57,000 murders committed against current or former intimate partners.104
Furthermore, domestic violence creates a tremendous strain on the provision of services in this country.105 Hospitals,106 police officers,107 and welfare and homeless service providers all require significant resources to counteract the fallout.108 Even the courts struggle with the impact of domestic violence on their caseloads.109 Yet despite the pervasive nature of the problem, court actors, including GALs, often have difficulty believing that domestic violence could be a factor in more than just a few extreme cases.110
Despite the prevalence of domestic violence in this country, GALs often minimize or ignore evidence of abuse in their assigned cases.111 This is true despite the fact that the caseload of an average GAL will contain a disproportional number of cases involving domestic violence.112 Even when they do recognize and acknowledge the batterer’s behavior, however, GALs may not recognize the continuing danger that the batterer may pose once the parties are separated.113 Thus, they may conclude that the history of domestic violence has no connection to the custody litigation before them.114
It is not uncommon for actors in the legal system to believe that domestic violence will cease once the parties are apart.115 Rather than decreasing the abuse, however, it is well documented that separation can serve as a catalyst for increased violence.116 Studies find that divorced women report being battered fourteen times as often as those [*PG301][*PG300]still with their partners.117 Married women no longer living with their husbands suffer four times as many physical and sexual assaults as those still living with the batterer.118 More victims are killed in the process of leaving than at any other time.119 In fact, escalated abuse by the batterer as a response to actual or perceived separation is so common that experts have coined the phrase “separation assault” to describe it.120 Separation assault is the manifestation of the batterer’s attempts to retain or regain power in a relationship, or to punish the victim for leaving the relationship.121
Ignoring separation assault can lead to potentially lethal consequences for abused parents and their children, especially during custody and visitation litigation.122 Batterers whose abuse escalates in response to the end of the relationship have proved particularly dangerous following separation, placing their children at high risk for exposure to additional abuse.123 For example, one newspaper reports that a six-year-old watched his father fatally stab his mother during a court-ordered custody transfer in front of Santa Monica City Hall.124 In another case, a woman was shot five times by her estranged husband.125 She had just dropped off their infant son at her sister-in-law’s house for the husband’s court-ordered visitation when he confronted and killed her.126 In yet another case, not only was the mother shot and killed by her ex-husband during a visitation exchange, but he also shot and killed their two-year-old daughter.127 Even once the parties separate, therefore, the safety of the children and abused parent must remain a priority when the GAL offers custody or visitation recommendations. Otherwise, the batterer may find additional opportunities to perpetrate abuse.128
Separation assault does not only refer to increased acts of violence.129 It can also take the form of less violent coercion intended to reassert the batterer’s power in the relationship or to punish the victim for leaving.130 Stalking, verbal abuse, threats, and harassment are all frequently reported by abused partners after separation.131 Batterers also attempt to intimidate their partners by threatening to take the children away, either by making false reports to state child protective services, by kidnapping, or by winning custody through the courts.132 Thus, separation assault provides an additional context within which to understand the potential motivations for custody litigation.133
The batterer’s desire to regain power and control in the relationship provides a subtext to child custody litigation involving a history of domestic violence.134 Awareness of that subtext is critical if GALs [*PG303][*PG302]are to assume the task of determining whether custody and visitation arrangements will contribute to the children’s safety and healing, or will instead create an opportunity for batterers to continue to control and victimize their former partners and children.135 Nevertheless, actors in the legal system, including GALs, continue to overlook the connections between domestic violence and custody disputes.136
[*PG304] Batterers are more likely than nonviolent parents to seek custody of their children.137 Custody litigation often serves as an opportunity to reassert the control batterers feel themselves losing as the relationship ends.138 Custody litigation is itself an effective way to maintain control: it intimidates the abused spouse through the threat of losing custody and can be financially devastating.139 Furthermore, batterers in one treatment program for abusers revealed that their primary motive for seeking custody was not concern for the children’s well-being, but to hurt and frighten their former partners.140 Some of the program participants indicated that they saw custody litigation as a “bargaining chip” that could be used to trade off against alimony, child support, or division of property.141 Batterers also use custody [*PG305]litigation to coerce former partners to drop criminal charges against them.142
Male batterers are also likely to win custody of their children.143 Although family courts are widely perceived as biased in favor of mothers in custody disputes, studies demonstrate that fathers succeed in their attempts to gain custody as often as 70% of the time.144 Batterers frequently have several advantages over their partners in custody litigation.145 They often have greater financial resources.146 They may outperform their partners in psychological testing, particularly if the evaluator is unfamiliar with the impact of domestic violence trauma on test results.147 Furthermore, batterers may directly coach or indirectly influence the statements and behavior of children to GALs.148
Counterintuitively, allegations of domestic violence can often work against an abused parent in custody litigation.149 Court actors frequently display skepticism toward allegations of abuse brought during custody proceedings, assuming that they are false or exaggerated for tactical purposes.150 Since batterers often exhibit a much different persona in public than they do at home, they may appear more credible or rational in legal proceedings than their partners do, giving the court further reason to question the alleged abuse.151 Furthermore, family courts tend to favor a shared parenting model.152 Under this framework, an abused parent’s reluctance to allow the batterer unrestricted access to the children may appear vindictive and uncoopera[*PG307][*PG306]tive, rather than a rational expression of legitimate safety concerns.153 In contrast, the batterer’s willingness to share access to the children, which also assures continued access to the abused parent, often makes the batterer the more attractive candidate for custody.154
In addition, courts often consider the one factor that should be the abuser’s biggest liability in custody proceedings—battering—to be unrelated to the ability to parent.155 An increasing body of research, however, contradicts this view.156 Exposing a child to domestic violence can have lasting and harmful repercussions for the child.157 Some commentators believe that the exposure of a child to battering is itself a form of child abuse that should be criminalized.158 GALs, therefore, must consider the harm to children from past exposure to domestic violence, as well as the risks of continued post-separation exposure, when recommending custody and visitation arrangements to courts.159
Too many children are exposed to domestic violence.161 Although it is unclear exactly how many are affected, estimates suggest that literally millions of children witness abuse between their parents each year in the United States.162 In homes with children where battering is present, as many as 87% of the children witness the abuse.163 Furthermore, children witness about half of all battering incidents.164 Since most con[*PG309][*PG308]tested custody cases involve domestic violence,165 a majority of the children involved in those cases have likely been repeatedly exposed to that violence.166 Therefore, in order to assess and recommend custody and visitation arrangements that are safe and in the best interests of children, GALs must consider the harmful effects that exposure to battering can have on children.167
Exposure to battering is not limited to what children witness visually when they observe a violent incident.168 Rather, “exposure” is an intentionally broad descriptor that not only includes what children may observe contemporaneously with a battering incident, but also attempts to capture the experience of living with ongoing abuse.169 Children may hear yelling, objects breaking, and crying.170 They may observe violence from a short distance, or they may be even closer than the term “witness” would suggest.171 Children also experience the aftermath of violence.172 They may see damaged property, blood from injuries, the abuser’s arrest, or even be forced by the abuser to participate in the cleanup.173 Events apart from the actual battering incident also affect children, such as hearing the event recounted to the court or having to relocate to a domestic violence shelter.174
Experts broadly agree that exposure to battering harms children.175 Children exposed to battering are at risk of developing a range of physical, behavioral, emotional, and cognitive problems.176 Each child’s reaction to exposure is unique, however, and may depend on a number of factors including gender, age, length of exposure, and relationship with the adults in the home.177
Children experience more physical problems when they grow up in a household with domestic violence.178 For example, they report more health problems, including headaches, failure to thrive, stomachaches, diarrhea, and peptic ulcers.179 Studies demonstrate that children exposed to battering have almost twice as many hospital admissions and are absent from school more often than children from the general population.180 Children are also more likely to suffer injuries in violent homes.181 Violence targeted at the abused parent can accidentally or recklessly harm children caught in its crossfire.182 A [*PG311][*PG310]child may be injured when hit by thrown objects, when struck by blows meant for the abused parent, or when attempting to intervene to stop the violence.183
Children exposed to battering are also significantly more likely to exhibit a range of cognitive and developmental problems.184 They frequently demonstrate an impaired ability to concentrate, poor performance on their schoolwork, and lower scores on tests measuring cognitive skills.185 Young children exhibit delays in verbal development.186 Similarly, studies consistently find that children exposed to battering present a range of emotional and behavioral problems.187 For example, they are more likely to have problems with anxiety, self-esteem, depression, and temperament.188 They are also more likely to display aggression in their relationships with others and to exhibit borderline to extreme behavioral problems.189
The effects of exposure to battering follow children into adolescence and even adulthood.190 Adolescents from families with a batterer have a higher risk of both suicide and drug use.191 Exposure to domestic violence is also linked to higher incidences of juvenile delinquency.192 The criminal behavior appears to continue into adulthood, as there is a strong correlation between exposure to battering and committing crimes later in life.193 A large percentage of incarcerated men and women report that they were exposed to violence in the home as children.194 Similarly, a national survey of federal violent offenders revealed that over 85% had been exposed to battering as children.195
One of the most distressing effects of childhood exposure to domestic violence is the possibility that battering will infect future relationships.196 Most experts agree that domestic violence is a learned behavior.197 The majority of batterers witnessed the abuse of their mothers when they were children, and the only consistent risk factor [*PG313][*PG312]identified among women who are battered is exposure to domestic violence in the family during childhood.198 The risk of violence in future relationships is not necessarily reserved for adult victims: children who grow up in abusive families are more likely to abuse or be abused in teen dating relationships as well.199
Finally, there is an additional danger to children living with batterers.200 Men who batter their partners are also more likely to abuse their children directly.201 Depending on the research methodology, studies suggest the co-incidence of child physical abuse and partner battering to be at least 30%, and possibly as high as 70%.202 There is also a correlation in severity: the greater the severity of the partner abuse, the greater the severity of the child abuse.203 Exposure to batterers may also be one of the strongest risk factors for sexual abuse, including incest.204 A batterer is between four and nine times more likely to be an incest perpetrator.205 Daughters are particularly at risk—they are six times more likely to be sexually abused in homes where there is also domestic violence.206
Even after the children’s parents separate, the batterer’s behavior continues to place the children at risk.207 Children remain the link between the batterer and the abused parent after separation.208 Thus, custody and visitation arrangements are potentially dangerous for both the abused parent and the children.209 Due to separation assault, children may be exposed to the batterers’ use of escalating violence designed to reassert power and control over the former partner.210 Evidence also suggests that batterers’ use of their children to intimidate their former partners will intensify in a post-separation context.211 Even without incidents of separation assault, however, children are still at risk of exposure to battering.212 Because battering is a serial behavior, the children are likely to witness abuse perpetrated by the batterer against a new partner.213 Therefore, GALs need to consider both the harm to the children from past exposure to the batterer’s behavior and the risks of continued post-separation exposure when making custody and visitation arrangements.214
A GAL who is inattentive to the intersection of domestic abuse, its effects on children, and child custody litigation, can unintentionally put a child at risk.215 For that reason, some commentators have understandably called for the reform of the GAL system.216 After all, there have been numerous criticisms of the use of GALs in all custody cases, particularly in cases involving domestic violence.217 In addition, [*PG315][*PG314]addressing these concerns is a daunting task when the use of GALs is distinctive to each jurisdiction.218 As the next section demonstrates, however, retaining the GAL system for private child custody disputes may offer more benefits to children exposed to domestic violence than would eliminating the GAL system altogether.219
The GAL system, while flawed, should be retained.220 At least one commentator has asserted that the system of appointing GALs to protect the interests of children should be abolished.221 While there are unquestionably valid criticisms of the current GAL system, few mention how the elimination or alteration of GALs may affect those children coming from homes characterized by ongoing domestic abuse.222 Proponents and even some critics do agree, however, that GALs have the potential to be most useful in higher risk cases.223 More importantly, commentators agree that the family court system, operating on its own, does not always adequately protect children who have been exposed to domestic violence.224 From this perspective, well-trained and skillful GALs can serve as a safety net for abused parents and children enmeshed in custody litigation.225
In many jurisdictions, however, the GAL system does not currently live up to its potential to protect the interests of children exposed to domestic violence.226 This primarily results from a lack of training and awareness of the implications of battering on the family.227 The courts assume that attorneys and mental health experts, because of the nature of their professions, have a sufficient understanding of domestic violence before becoming GALs.228 Yet education in both the legal and mental health professions has traditionally paid little attention to issues of domestic violence.229 Thus, GALs actually may be the least prepared of any actors in the family court on this issue.230
This lack of understanding of the dynamics of domestic violence puts GALs at a disadvantage when conducting evaluations or making [*PG317][*PG316]recommendations to courts.231 For example, without a sufficient understanding of domestic violence, GALs may rely on their subjective interpretations of demeanor to recognize abusive relationships.232 Domestic violence has a complex nature, however, and thus a GAL’s instinctive understandings may be misleading.233 This is particularly true regarding the evaluation of batterers, who often manipulate professionals and portray a public persona that is quite different from their abusive behavior in the home.234 Moreover, GALs may expect children who have been harmed by exposure to battering to exhibit fear of the abusive parent.235 Contrary to expectations, however, children of batterers may actually have a closer bond with the batterer than with the abused parent due to a condition known as “traumatic bonding.”236 When GALs fail to consider the history of abuse, the abused parents’ reasonable efforts to protect themselves and their children may be easily misinterpreted as instability or even vindictiveness.237
Consequently, insufficiently trained GALs recommend visitation and custody arrangements that are adverse to the safety of the abused parent and of the children whose interests they are appointed to protect.238 GALs may recommend that the court grant custody of the children to the batterer without considering the harm caused to the children by exposure to the batterer’s abusive behavior.239 There are also anecdotal reports of GALs who created unsafe situations, such as arranging joint interviews of the parties or revealing the whereabouts of a parent in hiding from the batterer.240 Furthermore, because GALs do not routinely conduct risk assessments before recommending visitation arrangements, they often do not take advantage of the option to recommend the use of professional supervised visitation centers.241 As a result, they inappropriately recommend that a family member or current intimate partner supervise the visitation.242
Finally, reformers criticize GALs for minimizing abuse or assuming that reports of abuse are fabricated for a tactical advantage in litiga[*PG319][*PG318]tion.243 When GALs assume that allegations of domestic violence are invalid or irrelevant, they may be less likely to investigate fully.244 Thus, GALs could submit reports to judges that omit important indicators of abuse.245 This is especially troublesome in those jurisdictions that require courts to consider domestic violence as a factor in custody decisions.246 Adequate training, however, could alert GALs to the impact of domestic violence on family dynamics and therefore prepare them to conduct accurate and thorough investigations into the impact of battering on the family.247 This issue can also be addressed by more specifically enumerating guidelines for investigations and requiring GALs to address domestic violence issues in every report they submit.248
The use of GALs could provide a number of benefits in custody litigation involving domestic violence.249 For example, critics assert that a GAL’s investigation simply duplicates the responsibility of the parties’ attorneys to bring relevant evidence before the court.250 What critics do not consider, however, is that attorneys commonly fail to introduce evidence of abuse during custody litigation.251 Even if attorneys routinely discuss domestic violence issues before the court, parties increasingly come before the court pro se and are therefore less likely to know how to gather and present evidence of domestic violence in a meaningful way.252 A GAL who is familiar with the court system and knowledgeable about documenting domestic violence, however, would be well equipped to present to the judge the information necessary to apply custodial statutes mandating consideration of domestic violence.253 Furthermore, GALs have a unique opportunity to refer parties to community resources and to educate actors in the legal system about the effects on children of exposure to domestic violence.254 In addition, GALs that are properly aware of separation assault and other issues stemming from domestic violence may be in the best position to conduct risk assessments and to incorporate safety into their custody and visitation arrangement recommendations.255
[*PG321][*PG320] GALs, therefore, can serve as a resource for victims, a check for batterers, and, most importantly, a protector for children exposed to domestic violence.256 Currently, however, GALs cannot fulfill their potential in this area because of a lack of professional guidelines that impose requirements and considerations specific to the domestic violence context.257 Guidelines that encourage, and in some cases require, GALs to be sensitive to issues of domestic violence ultimately will serve to increase the safety of the children whose lives are affected by exposure to battering.258 The next section proposes guidelines for GALs that incorporate the concerns raised by the presence of domestic violence in custody disputes.
While the GAL system can be reformed by state legislatures, change is more likely to come from the state courts.259 Change from the courts would probably take the form of standards and guidelines that establish qualifications, training requirements, professional duties, and responsibilities for GALs.260 Several states have recently begun to address problems with the GAL system by developing such guidelines.261 While some of these states have addressed domestic violence concerns by including the dynamics of abuse in their training requirements, they have yet to address other aspects of the GAL role, which can also have a significant impact in cases involving domestic violence.262
Courts should enact standards and guidelines that fully address the GAL’s role in cases involving domestic violence in order to help GALs protect children exposed to battering.263 Therefore, what follows is a sampling of suggested guidelines, in the format of a model code, that a state court could adopt in order to address the neglected domestic violence issue in GAL systems.264 This proposal is not intended to be a complete set of GAL guidelines, but rather includes only those standards and recommendations that are particularly relevant to addressing the role of the GAL in child custody cases involving a history of domestic violence.265
1. Any person intending to serve as a guardian ad litem shall complete [insert number]266 hours of training before accepting appointments. He or she will then provide to the [office responsible]267 a certificate of completion to be kept on file.
2.A panel shall be established for the purpose of reviewing and evaluating training requirements and will make adjustments in the requirements or contents of the training as necessary. The training curricula and hourly requirements should be reviewed at least every [insert number]268 years.
3.Training content will be determined by the panel established in Standard 1.0(2). At a minimum, however, the training must cover the following:
a.Laws relevant to domestic violence, including, but not limited to, any custody laws that reference domestic violence;
b.How to identify partner abuse and assess safety concerns;
c.The latest research on the connections between domestic violence and its effects on children; and
d.Sensitivity and awareness of personal bias and cultural perspectives.
4.In addition to satisfying the training requirements above, any person who intends to serve as a guardian ad litem shall observe a variety of family court proceedings, including, but not limited to, at least one child custody hearing and one domestic abuse hearing.
[*PG324]5.The [office responsible] will maintain a list of current guardians ad litem who are willing to serve as consultants to new guardians ad litem. The list should include guardians ad litem with various specialties, including those who specialize in domestic violence.
Commentary:The purpose of the pre-service training requirement in subsection (1) is to equip all guardians ad litem (GALs) with the skills, techniques, knowledge, and understanding necessary to protect effectively the best interests of children.269 Although in many states GALs are licensed professionals, rarely will a professional background in any one field adequately prepare an individual for the varying roles required of service in the family court.270 In addition, licensed professionals do not necessarily have sufficient education or experience with domestic violence issues to assess and address adequately the concerns raised by the presence of abuse in the family.271
The panel established in subsection (2) to oversee the training of GALs should include a range of disciplines and professions. To the extent possible, the panel should include family court judges, attorneys who routinely practice in family court, existing GALs, mental health professionals, and members of the domestic violence community (including battered women’s advocates and/or batterer intervention programs), and any other professionals the jurisdiction deems appropriate.
The topics for training listed in subsection (3) should in no way be considered exhaustive, but merely a listing of the core domestic violence topics without which a GAL would be unable to serve effectively.272 Since a large number of contested custody cases involve domestic violence, and since GALs will probably not have received sufficient prior education in this area, it is important to include domestic violence issues in training.273
GALs will attend many custody hearings as a result of their appointments. Subsection (4) requires that GALs attend at least one of these hearings prior to assuming cases as a GAL. This is particularly recommended for those jurisdictions that do not restrict appointments to licensed attorneys.274 Subsection (4) further recommends that GALs familiarize themselves with related family law and domestic abuse proceedings which they may not ordinarily attend, but which will also impact the children whose interests they are appointed to protect.275
Subsection (5) addresses two issues. First, not all GALs have access to a professional association or an office designed to provide support for their daily activities as a GAL. Therefore, it is important, particularly for new GALs, to have access to the guidance and support of other, more experienced GALs.276 Second, few GALs will have the expertise necessary to handle every case with a history of domestic violence.277 If GALs can identify and access specialists in this area, they will be able to seek advice when needed or to recommend that the court appoint a domestic violence specialist to the case.278
1.Once a guardian ad litem has been approved, eligibility to accept appointments may be maintained only by completing [insert [*PG326][*PG325]number]279 hours annually of continuing professional development training in the domestic violence field.
Commentary:The requirement of annual training ensures that GALs keep abreast of current information on the status of the law, as well as theories of family and social relationships relevant to domestic violence.280 Requirements for professional development also reassure members of the judiciary that the GALs they appoint will have current knowledge on the connections between battering and children’s well-being. The parties will also have increased confidence in their GAL, and in the court system, if they believe the GAL is fully prepared to address the issues in their case.281
1.Only a person who [insert qualifications] and who has fulfilled the training requirements set forth in these guidelines may be appointed as a guardian ad litem.
Commentary:This guideline takes no position on whether GALs must be attorneys, licensed mental health professionals, law volunteers, or have any other required background. First, such requirements are generally determined within the state’s appointment statutes.282 Second, the background required to fulfill this position is largely dependent on the role that the court expects the GAL to serve.283 For example, in states where the GAL is expected to act as counsel for the child, calling witnesses and presenting evidence, it may be more important for the GAL to be an attorney. If the role of the GAL is restricted to an investigatory capacity, however, then a well-trained volunteer may serve just as well, if not better, than a licensed professional.284 Third, while each category of applicants will have its advantages, the most important criterion from the perspective of a parent and child experiencing partner abuse is that the GAL displays understanding, sensitivity, and skill in the area of domestic violence. A professional education in law or mental health does not guarantee any of the above.285
1.Any person who wishes to be listed as a domestic violence specialist must submit to an interview with [office responsible]286 and supply documentation that he or she has met all requirements for certification.
Commentary:A one-time training prior to becoming a GAL, while sufficient to establish certain skills, does not make one an expert in the area of domestic violence.287 Furthermore, some cases involving domestic violence may be particularly complex, requiring the skills of an individual with specialized expertise.288 Therefore, the state court should establish criteria for certification in domestic violence that includes, but is not limited to, educational requirements, experience requirements, and references.
The interview requirement set forth in subsection (1) is intended to serve as an additional screening function. Working with families experiencing domestic violence is a very sensitive, and potentially dangerous, endeavor; the interview is one way to determine that someone who wishes to work with these cases in particular is qualified to do so.289 The existence of domestic violence specialists, however, is in no way intended to indicate that other GALs, or other members of [*PG328][*PG327]the court system, have any less responsibility to be knowledgeable about and sensitive to domestic violence issues.290
1.Every court should implement a mechanism for screening contested child custody cases for the purpose of determining the existence of any history of domestic violence.
2.Regardless of whether such a mechanism is in place, guardians ad litem should also screen the parties for any history of domestic violence as part of their initial investigation.
Commentary:Screening allows for early identification of the victims and perpetrators of abuse.291 Early identification then gives the court the opportunity to appoint a GAL or certified domestic violence specialist as early as possible in the custody litigation process, allowing time for adequate investigation and assessment of safety concerns.292 Qualified individuals who are trained to identify abuse should conduct these screenings so that courts do not have to rely solely on pleadings or party disclosures.293
Subsection (2) has two goals. One is to recognize that abuse is often difficult to identify and that for many reasons, it may not be discovered through the court’s initial screening process.294 The second is to indicate that in order to conduct a complete investigation, GALs must always consider the possible existence of domestic violence.295 Exploring these areas early will avoid such safety concerns as conduct[*PG329]ing joint interviews with the parents or inappropriately initiating mediation (see Standard 6.0).296
1.In those jurisdictions where the guardian ad litem routinely conducts mediations with the parties, the guardian ad litem shall:
a. Make a determination prior to beginning mediation as to whether domestic violence is a factor in the case; and
b. Refrain from conducting mediation between the parties if domestic violence is a factor.
Commentary: Mediation and negotiation are generally discouraged in cases involving domestic violence.297 If domestic violence is present, the dynamics of the parents’ relationship may make it impossible to arrive at an agreement without concern that the agreement was coerced or manipulated by the batterer.298 Jurisdictions may, however, create an exception to this rule if both parties agree to the mediation after consulting with the GAL separately and the GAL determines that each party agreed under his or her own free will.299
1.Guardians ad litem shall be required to include in their reports any findings regarding the existence of domestic violence in the family.
Commentary:This guideline is only applicable in jurisdictions that expect a report from the appointed GAL.300 The goal of this guideline is [*PG330]to standardize the inclusion of domestic violence findings in the GAL report.301 Since almost all jurisdictions allow consideration of domestic violence as a factor in custody proceedings, GALs should consistently include their findings on domestic violence to alert judges to the presence or absence of this important issue.302 A second goal of this guideline is to encourage GALs to assess domestic violence and safety concerns routinely in every case. This standard additionally reinforces the idea that partner abuse could be a factor in the investigation, even if the GAL was not appointed specifically for that reason.303 As a general rule, a GAL’s report should include all relevant evidence discovered through the GAL’s investigation, not just the evidence that supports the GAL’s recommendations.304
Despite the many criticisms of the GAL system, GALs have become entrenched as participants in family court proceedings. They are appointed in ever increasing numbers as judges struggle to address complex child custody disputes arising from divorce and other actions. At the same time, advocates increasingly recognize that children need protection not just from direct physical and sexual abuse, but also from the emotional and psychological ramifications of exposure to domestic violence.
Since the role of the GAL is to protect the interests of children, it is a natural step to conclude that a GAL’s involvement is even more important in child custody disputes that involve a history of domestic violence than in less volatile cases. Yet many GALs, especially those in states without specific guidelines, perform their work without training or expertise in domestic violence issues. A GAL who lacks understanding of and sensitivity to domestic violence can easily jeopardize the safety and well-being of adult and child victims of battering.
It does not follow, however, that the system of appointing GALs for children should be completely abolished. Such a reaction would leave children, whose interests are already vulnerable, without any [*PG331]protection in the proceedings at all. Therefore, jurisdictions that wish to utilize GALs in cases involving domestic violence should enact standards and guidelines that not only require professionalism from the GAL, but also ensure that the GAL is equipped with the knowledge and skills needed to work effectively with a family battered by the impact of domestic violence.