“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.
Awareness of that subtext is critical if GALs 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. Nevertheless, actors in the legal system, including GALs, continue to overlook the connections between domestic violence and custody disputes…” ~ Cynthia Grover Hastings
Author: Cynthia Grover Hastings, family law attorney from Massachusetts
Summary: This article examines the role of Guardian ad Litems (GAL) in family court cases that involve domestic violence (DV) and exposes the failures in the GAL program that place the lives of children, and victimized parents at risk.
“Letting Down Their Guard” concludes with recommendations on how to improve training for GALs, and ways to increase their skill set in areas involving domestic violence and its impact on children. It also offers insight on how a GAL, and by extension program managers, can improve the handling of cases involving domestic violence.
Guardian ad Litems are appointed by the court to advocate for children and to make recommendations concerning visitation and custody. Courts are required to appoint a GAL in cases involving domestic violence or in cases of alleged child abuse and neglect. It is also becoming more common for courts to appoint GALs in cases deemed “high conflict”, especially where one party is self-represented.
NOTE: Self-represented parties are often labelled as being “burdensome” and “difficult” and “complex” by the court system and it has become an acceptable solution to appoint a GAL to these types of cases to figure things out. I would argue that appointing a GAL to a case simply because one party is self-represented is inappropriate, discriminatory and requires a GAL to act outside the scope of their duties. A GAL has specific mandated duties if a family needs services outside of that, and it is an issue that does not jeopardize the health or well-being of a child, community resources and legal resources can be utilized to meet the needs of the parties.
A majority of cases that a GAL is appointed to involve some form of domestic violence or child abuse yet, Hastings cites research and an actual family court case to show evidence that many GALs lack the education or training to properly handle cases involving domestic violence, ” 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…When GALs lack understanding or are simply inattentive to the repercussions of partner abuse, they may adversely affect a significant number of custody decisions.”
Hastings says that a GAL program does not live up to its potential to protect the interests of children affected by violence but believes the flaws in the system should be acknowledged and addressed rather than abolish the system as a whole. To terminate the GAL program, Hastings says, would put already vulnerable children even more at risk because they would have absolutely no protection in legal proceedings at all.
Hastings believes that a GAL does have the potential to be a positive impact in the life of a child. She says that GAL could also be an important voice in making sure the courts are aware of a family history of violence and using their investigation to determine how the violence has affected the child, and making recommendations that address safety concerns with the children and victimized parent.
In “Letting Their Guard Down”, Hastings discusses:
- A historical look at the judicial system’s use of GALs to protect the interest of children
- The widespread effect of domestic violence, including how DV manifests after separation, including in a legal setting, this section will”…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.”
- Why the influence of GALs in cases involving DV tend to be more problematic than helpful for the children the GALs are meant to protect
- Offers model guidelines for GALs to increase the safety of children and parent-victims of domestic violence that are involved in family court proceedings
I think “Letting Down Their Guard” should have gone further to discuss.
- Issues with the management of the GAL program – their supervision of GALs, and ability to detect and/or correct problems. There is an overall need for increased accountability in the GAL program.
- The Complaint Process – does not acknowledge that a parent has a right to file a complaint against a GAL if they feel they, or the child, have been mistreated. And does not offer recommendations for a complaint process to be filed vs a GAL or offer guidance on any disciplinary measures
“Letting Down Their Guard” is an excellent article…and would highly recommend for its comprehensive research on domestic violence and family court issues.