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Who Determines The Actual “Best Interest of the Child?”

The Delicate Balance Between Minor’s Counsel/Attorneys for the Children and Guardian Ad Litems

Custody evaluators can be a wide range of people – some appointed by the court, and others who must be paid for by the private parties. Often, protective parents fear the lack of training in the professionals who are deciding the fate – and especially the safety – of our children. Unfortunately, many have no education in social work or domestic abuse, and probably little, if any, knowledge of coercive control.

In a live interview, California attorney Dr. Jude Egan, of Egan Law, shared some of the difficulties faced by those saddled with this tremendous responsibility of deciding a child’s fate, and the conflict between what judges expect versus what families need. Here are excerpts of what Jude had to say:

Minor’s counsel are lawyers who get appointed to represent kids (during custody proceedings). We get paid, but we get paid by the state or the county. And it’s far less than our normal hourly billing rate. And our job, at least under California law, in theory, is to just be a lawyer for the kids.

In other words, we’re not witnesses. We’re not supposed to make reports. We’re allowed all the same access to information that parents are allowed access to, but not really any more than that. We’re really just lawyers in a case, a third lawyer who’s supposed to put on a trial.

The appellate court affirmed a trial court’s ruling (see Ramsden vs. Peterson) basically saying that lawyers for children could make recommendations. And that kind of created a blurry line between what I think of as a traditional guardian ad litem (a guardian that a court appoints to watch after someone during a case) who is a witness.

The guardian ad litem goes out, writes a report, comes back, and tells the court. This is what we should do under the circumstances. A lawyer is just supposed to argue and we don’t have to find information; we just get to present it.

And I think now there’s a blurry line in California and it’s kind of gummed up the works a little bit.

One of the issues is that as a lawyer, it’s typically really easy to do my job. And what I mean by that is it’s easy to work with my client, find out what they want to have happen, and advocate for that.

That doesn’t mean I won’t advocate with my client to say, “Hey, I think your position is too strong.” I think that, you know, this isn’t something I think we should ask for. And here’s why.

I might have a back and forth with my client. But once we’ve understood what the advocacy position is, then we’re like a wind-up doll, right? Just point it in a straight line and we just keep going!

That’s advocacy.

But as a lawyer for kids, you kind of have something different. You now have a client and the client has an interest. And that interest might be that I want to live 50/50 with both parents. And that’s what they tell you.

And so we’re trained as advocates to want to do the thing that our client wants us to do. But the law also asks us to look at the best interests of the children.

The guardian ad litems are supposed to figure out what the best interests are, based on their word. And then write reports. They advocate for that. That’s all they do. They’re determining the best interest. They may have discussed it with their client, but at the end of the day, they’re going to make the decision.

That isn’t really what we’re asked to do; we’re also balancing that against pure advocacy, which is what our client wants.

For example, you’re interviewing a stressed-out eleven-year-old who’s got one parent who lives in Los Angeles and one who lives in Paso Robles four hours away, and they’re trying to go every other weekend back and forth, and spending eight hours in the car. But they tell you, “I want to see both parents a lot, but I’m also really stressed out about being in the car. “

It puts a bind on the person who’s representing the child. Because on the one hand, they’re not really old enough to speak for themselves at eleven.

A lot of states recognize fourteen (as a child’s having a voice); in California, maybe twelve, but probably not eleven. So on the one hand, you want to advocate for what they want, which is time with both parents. On the other hand, you’re balancing that against twice a month, doing an eight-hour drive with the stressed-out parent, which makes the drive even more stressed out.

How do we do that? So I think that it’s a little bit challenging… they’re kind of blurring the line for us, I guess, saying we should both act as guardian ad litem and act as an attorney for the child. And I think that creates a conflict.

We don’t want to make recommendations, even though our judges want us to make recommendations, too.

In fact, that’s probably the biggest strain is the judges want us to do it because it makes their lives easier. I mean, they figure, we have somebody who’s very knowledgeable and who’s been doing this a long time. And I trust their judgment.

It’s a whole lot of power to have without a social work degree, without a licensed custody evaluator, you know, a degree in psychology. We’re really putting a lot of pressure on lawyers to make those decisions.

So we started to say we’re not going to make those decisions. You know, we’re here to be lawyers in the case and we’ll advocate for the position that we think is best. And we’ll ask hard questions and push the judge to make a decision.

Jude impressed me so much with his sensitive but blunt honesty in discussing common issues that all of our clients share, a main one in making sure the truth gets heard by the people making life-changing decisions for ourselves and our children, especially during a custody battle.

Deciding the fate of our families is not something which should be done lightly.

(Note: This snippet is taken from our longer live interview, “A Lawyer Who Gets It” with Dr. Jude Egan of Egan Law. Keep your eyes peeled for another segment of this interview where we talk about how to get kids openly talking to the experts making decisions).

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