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You'd like to serve occasionally as a GAL, child representative, or attorney for the child, but you're hardly an expert in child psychology. How do you play this important but challenging role? Seasoned lawyers offer dos, don'ts, and tips.
You've decided to expand your practice by making yourself available for appointment as a guardian ad litem, child representative, or attorney for children in custody proceedings in courts in your area. To qualify for these roles, you've attended the mandated training sessions on child development and psychological issues (see the sidebar for more on the requirements and duties that go with the job).
Still, you feel uneasy. And you're not alone.
In spite of their training, lawyers who have had little personal experience with children since they were children themselves may find themselves at a loss when meeting with kids whose custody is at issue. And your skills as an advocate may not serve you well in the nonadversarial roles of GAL or child representative.
Ogle County lawyer Maria Berger, who's qualified and has served as a GAL under SCR 906, voices the concerns of others in her position. "The court appoints you as a GAL or child rep. You've gone through the training and you're qualified under the supreme court rule. But you are not a psychiatrist, you're not a therapist, and you're not a psychologist. You're not trained in any of those professions.
"So, you're sitting there with these kids. How do you connect with them? How do you establish a relationship of trust? What works, and what doesn't work, for getting information out of children?"
Three experienced lawyers who regularly serve as GALs and child representatives and two mental health professionals who have worked with courts spoke to the IBJ on how lawyers appointed to those nonadversarial roles can effectively and sensitively connect with the children whose custody is at issue.
Seek other sources
Cook County lawyer Umberto Davi says Berger's concerns are valid. "We're lawyers. We don't know how to interview children. We may have some life experience with it, but it's not the job we've been trained to do."
But Davi suggests that lawyers may be putting too much pressure on themselves by assuming that they must obtain their information from the children. "To rely on the interview with the children to form your opinion is a mistake. You're going to have lots of sources of information apart from the children."
Furthermore, some children are far too young to say anything to the GAL or child representative, Davi notes. In those cases, he says, "I've got to get my information somewhere else."
Those other information sources include the records of the court, the attorneys representing the parents, and the parents themselves, Davi says. "If there have been enough problems to have a GAL involved, there are going to be other people involved also. I talk to anyone who has had anything to do with this family."
Lay the groundwork for your work in the case before you meet with the children, he says, by finding out all the information you can from those sources first. Then, when you do meet with the children, you'll feel more prepared and comfortable with your assignment as a GAL or child representative. You'll also be more efficient.
DuPage County Legal Assistance Foundation lawyer Cecilia Najera says, "I talk to the attorneys for the parents first to find out what the issues are. Then, I bring in the parents and find out their perspective on the issues. Only then do I talk to the children."
She, Davi, and Chicago lawyer Ralla Klepak say that the initial meeting will generally take place in their offices, with one or, sometimes, both parents bringing the children. They also say that GALs and child representatives should plan on meeting at least twice with the children to be sure that they've done an adequate job.
Be honest - and be yourself
Once the child representative or GAL does speak with the children, the lawyers interviewed say that honesty and forthrightness are essential. "Be straightforward and tell the truth," Klepak says. "You can play with them, depending on their age, but don't ever talk down to them."
Najera, who, like Klepak, was a teacher before becoming a lawyer, says such experience can help, as can being a "warm and fuzzy" person. Davi, too, says his background in psychology has been useful. And being a parent can go far toward easing concerns about how to relate to children.
But the lawyer who lacks such experience shouldn't despair, they say. "Be yourself," Najera says, and don't try to imitate someone else. "The kids will pick up on whether you're being authentic. If you're not a jokey type of person, don't try to be one."
The mental health professionals interviewed agree that honesty is crucial. Dr. Miriam B. Gutmann, an adult and child psychiatrist for the Chicago Center for Family Health, says, "The child has to have a level of trust. You should start off by identifying who you are. You can acknowledge that this situation may be uncomfortable and that you understand that the child may be nervous. You can also ask whether there's anything you can do to make the child comfortable."
Margaret S. Powers, an Arlington Heights licensed clinical social worker who has worked as a divorce mediator for the Circuit Court of Cook County, says, "It's really important for child representatives and GALs to explain in their initial talk with the children what they will and won't do." Children frequently believe that GALs or child representatives are their attorneys, Powers says, and that they'll be able to speak with them often and at length.
"If the GAL or child rep is not clear on what the children can expect and doesn't call them back, the children will feel very betrayed. It only adds to the problems in the family when the children feel betrayed and abandoned not only by their family members but also by the legal system."
"Sit on the floor with them"
To introduce herself, Klepak says, in language that's appropriate to the age of the children, she explains who she is and why she's meeting with them. She then tries to get to know them. "I like to talk silly to little kids. I asked a 7-1/2 year old boy, 'So what do you want to be when you grow up - the president of the United States or a garbage picker?' He thought that was very funny, and we started talking about all kinds of things."
Klepak, who says children spend quite a bit of time in her office waiting to see her or for their parents, has turned a portion of her office into a sort of a playroom, with blackboards, child-sized furniture, and toys. "It's not play therapy, but it gives them a kid-friendly environment and puts them more at their ease."
Najera says, "The biggest thing in the beginning is to build rapport with the kids. With little kids, you have to get down to their level. Sit on the floor with them and talk." One of her goals at her initial meeting with the children, she says, is to evaluate how she's going to get them to be comfortable enough to be willing to talk with her.
Davi says he has a park near his office and often goes there with children. "Nine or 10 times out of 10, I let the parent who brings them in sit with me. My conversation during the first meeting with the children never gets to what we're there for. We don't talk about the case - we talk about anything else but the case."
Maria Berger, whose question inspired this article, says she discovered that her dog is an effective icebreaker. "I ask the parents ahead of time whether it's OK for me to bring my dog to see the children. My dog is really good with kids, and I find that as soon as they see the dog, all of their inhibitions go down. They just start yammering away, and I can listen and pick up clues as to what's going on."
Avoid direct questions
Klepak, Davi, and Najera all warn against asking children overly direct questions, particularly on short acquaintance. Klepak remembers a case in which a male lawyer appointed as a child representative asked a 13-year-old girl at their first meeting whether she was sexually active.
"I would never dream of asking a child such a question" absent a report that the child was promiscuous, says Klepak. "I certainly wouldn't ask it as an opening question. I'd want to gain the child's trust and edge into it after I'd known her for a while. I wouldn't want her to think I was being judgmental or had a prurient interest in her life."
Davi says he rarely asks direct questions. "I try not to put the kids in a position where they have to tell me that mom or dad is a bad person. It's unfair to tell these children to rat on their parents or to pick sides. You have to reach the conclusion yourself, through a recital of facts or situations that the children have witnessed, where they tell you in a general sense."
Najera emphasizes using age-appropriate language and avoiding unnecessary details so as to guard against suggesting or tainting the children's responses. While more detail may be appropriate for a teenager than for a younger child, "you don't necessarily want to go into too much detail with older kids, because they may be trying to structure how to respond to you based on how you explain your duties." When it comes time to ask questions, Najera recommends open-ended language that does not favor one parent over the other.
Having met the children initially in your office, the lawyers recommend meeting them again on their ground. Najera says, "You can't properly evaluate a case without visiting at least one parent's home. It's helpful because you get to see where the children are comfortable. They'll be more comfortable with you being on their turf instead of them in your office."
Najera says a visit to one or both homes can provide valuable information about whether information the parents have provided is accurate. "There are cues in the children's rooms and the rest of their homes about what they like. It's easier for them to show you stuff." To prepare the children for her visit, Najera asks them at her first meeting with them, "How would you feel if I came to visit you and you got to show me where you live?"
When kids won't talk
The lawyers say that most children will want to talk to the GALs or child representatives. Occasionally, however, a child may maintain silence even after the lawyer has worked hard to build rapport. What to do then will depend on the individual child.
Gutmann provides a suggestion for a reluctant younger child who denies that anything is wrong when she has a good idea that there is. "I will sometimes say, 'Sometimes when I work with other children in this situation, they get very worried about X. Does that apply to you?' If that doesn't work, I'll get away from the issue and broaden my focus, maybe talk about something completely different and then come back to it later."
"You can never drag information out of them," Klepak says. With, for example, a sullen teenager, Klepak says, "I tell them I can't force them to talk to me, but I'm the pipeline to the judge. If they want the judge to know something such as that their parents are mean to them, or there's something in their lives they'd like to change or achieve that their parents aren't helpful about, I'm the way to let the judge know about that. But if they're totally happy and okay with their lives, I'm glad to hear it. I let them know that if they change their minds, they can call me."
Klepak says that on the rare occasions children don't want to talk to her, it's usually because they're angry. "I tell them that anger isn't good. They need to talk to somebody. If they don't want to talk to me, that's fine, but I tell them that they need to talk to someone because they need to be happy." Klepak identifies priests, rabbis, ministers, and social workers as possible confidante alternatives for troubled youths.
Don't take sides
Klepak also advises those acting as GALs or child representatives, "Never bluff. They need to know that what you see is what you get. You have to have credibility, just as you do with your colleagues."
The professionals all warn lawyers acting as GALs and child representatives against using themselves as gauges for what is normal. "It's easy to use your own life experiences or family of origin as a measure for normalcy," says Powers, citing as an example a lawyer who had grown up with an alcoholic father who disagreed with her view that addiction issues in one subject family were a problem. "That can be damaging to a child, and unhelpful to the case."
Davi emphasizes that GALs and child representatives must also maintain their nonadversarial positions. "The family is already a conflicted situation, a fire out of control. That's why you got appointed."
Even if you learn of a particular problem with one of the parents, Davi says, don't become that parent's adversary. Instead, remember that you need to enlist the help of both parents for the children.
"Your internal judgment can color the way you approach your job. That's the judge's job, not ours. We're supposed to help the situation and promote settlement. You can't do that if a parent sees you as against him or her. That will not encourage the parents to improve themselves so as to remain invested in their children."
Davi and the other lawyers emphasize that their involvement in the children's lives as GALs or child representatives is necessarily fleeting. The long-term goal of any GAL or child representative must be for the children's parents to work together to stabilize and improve their children's lives.
"What better way to advocate for children than to try to help their parents to become better?" asks Davi. "Then, when you're out of the case, they can function better, outside of the system."
Article IX of the Supreme Court Rules, which governs child custody proceedings in the state courts of Illinois, took effect July 1, 2006. The article's stated purpose is "to expedite cases affecting the custody of a child, to ensure the coordination of custody matters filed under different statutory Acts, and to focus child custody proceedings on the best interests of the child, while protecting the rights of other parties to the proceedings." For more, see Helen W. Gunnarsson, Guardian Ad Litem, Attorney for the Child, Child Representative: How's the System Working? 95 Ill Bar J 352 (July 2007). Also see in that issue So you wanna be a child rep? by Helen W. Gunnarsson (LawPulse).
The rules apply to custody matters in cases filed under the Juvenile Court Act of 1987, the Illinois Marriage and Dissolution of Marriage Act, the Uniform Child Custody Jurisdiction and Enforcement Act, the Illinois Parentage Act of 1984, domestic violence proceedings under the Illinois Domestic Violence Act of 1986 and article 112A of the Code of Criminal Procedure of 1963, and guardianship matters involving a minor under article XI of the Probate Act of 1975.
Lawyers who aspire to appointments as guardians ad litem, child representatives, or attorneys for children in custody proceedings must qualify for those positions through court-approved training pursuant to SCR 906. The training varies from circuit to circuit, but most, if not all, have implemented the supreme court's strong recommendation that lawyers must have spent at least 10 hours in approved CLE classes on topics such as child development, family dynamics, including substance abuse, domestic abuse, and mental health issues, and ethical issues in child custody cases in the two years before qualifying. Once certified, to remain eligible for appointment, lawyers must continue to attend approved child related CLE courses. SCR 906(c).
The nonadversarial positions of GAL or child representative carry responsibilities every bit as heavy as the adversarial duties of the attorneys for any of the parties. GALs are to act as investigators. They must interview the children and the parties, make recommendations in the children's best interest - including, often, a custody recommendation - and testify or submit a written report as to those recommendations. 750 ILCS 5/506(a)(2). (For more about the GALs role in family mediation, see Suzanne Schmitz's article in this issue.)
For more, see Helen W. Gunnarsson, Guardian Ad Litem, Attorney for the Child, Child Representative: How's the System Working? 95 Ill Bar J 352 (July 2007) and, in LawPulse in the same issue, So you wanna be a child rep? The following articles appeared in various issues of the ISBA Child Law Section newsletter: Laura Kern, GAL appointment, now what? (December 2009); Susan M. Brazas, The role of the GAL in family law cases (May 2008); Kathryn Bischoff, Practice tips: Interviewing techniques for young children (December 2006) and Interviewing Children, Part II (September 2007); and Ralla Klepak, Creating a collaborative atmosphere: Child Representatives, guardians-ad-litem, and attorneys for children (December 2006). For a look at the special issues raised by international and cross-cultural custody disputes, see this month's LawPulse.
- Helen W. Gunnarsson
Veteran GAL Ann Dittmar, a partner at McGreevy Williams in Rockford, offers these interview pointers.
Parents. Interview parents first, separately and without children present. Listen for problems or issues of any kind you'll want to explore further with the children. Find out something about the kids - their favorite sports, their pets, anything that can help you break the ice.
Sample interview questions for kids
Older kids. Shoot straight with older kids. They know what's going on, and they can give you insights into what's best for younger children. ("How is Bobby doing? How is he handling the divorce?")
Comparisons. Compare what parents said with what the child says about his or her favorite book, movie, game, cartoon character. Which parent knows the child better?
Notes. Don't take them during the interview, when doing so might intimidate the child or make him or her think you aren't listening. Take careful, thorough notes immediately afterward.