Representing children vs. representing children’s interests: a fundamental distinction

On October 24, 2011, the Colorado supreme court decided People v. Gabriesheski, in which it concluded that statements children make to court-appointed guardians ad litem in a dependency and neglect proceeding are not protected by statutory privilege because the children in that situation are not clients of the guardians ad litem.  In that opinion, the court also confirmed that statements to a social worker are not necessarily privileged either, unless the statements are made in compliance with court treatment orders or in the course of psychotherapy.

In so deciding, the court affirmed and clarified the fundamental principle that guardians ad litem represent the interests of children, not the children themselves, a concept that often confuses children and parents involved in the family law or juvenile law system.  This concept also applies to court-appointed Child and Family Investigators, whose job it is to help the court understand what is in children’s best interests, not to represent children before the court.

This distinction is important because what a child wants is not always in that child’s best interests.  As I often explain to my clients, children often do not know what is best for them.  The legislature believed that an analysis of a child’s best interests should include the child’s wishes if the child “is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule.”  However, because children often do not know what is in their best interests, the child’s wishes is only one of many factors that a court must consider in determining what is in that child’s best interests.  C.R.S. § 14-10-124(1.5)(a).

If GALs and CFIs were supposed to represent the children themselves, then their analysis would stop at identifying what the children themselves want, and would consist of trying to convince parents and the courts to honor the children’s wishes.  Instead, we expect GALs and CFIs to dig deeper into children’s lives to represent what would be best for the children, which may not be what those children want.

To help my clients understand this distinction, I often try to provide examples of poor decisions children make.  Frankly, if children’s wishes controlled these proceedings, many of my client’s children would eat ice cream for dinner, ignore their homework, skip school to play with their friends, watch age-inappropriate movies, and opt to live with whichever parent was the most lax regarding curfews, chores, and responsibilities.  Although that scenario might result in happy children in the short term, it would not serve the long-term interests of the children, which is why our system is designed to let responsible adults determine what is really best for the children involved in this process.

Another important reason that we do not allow children to make these decisions themselves is that, even if children were capable of adequately determining what is in their own best interests, we do not believe it is in their best interests to place that responsibility upon them.  Asking children to decide whether to live with mom or dad places children in a position where they must choose between their parents or choose not to live with their parents altogether.  Children understand that such a decision will necessarily hurt one of their parents and may damage the relationships between children and their parents.

Chief Justice Directive 04-06, which sets forth the responsibilities of a guardian ad litem, clearly indicates that those responsibilities are to represent the best interests of the child, which was one of the issues the court considered in issuing its opinion.

Honestly, I am not sure whether there should be privilege for statements made to a GAL.  On the one hand, a child may not be as open with the GAL if the child believes those statements can be shared with the court and the parents.   On the other hand, if those statements are privileged, then the GAL’s ability to use those statements to help the child are limited.  Also, the GAL’s job is not to serve as the child’s therapist or counselor.

In either case, the court’s message seems to be that, if the legislature believes those conversations should be privileged, it needs to say so expressly, because as written, the law does not provide a privilege for communications between a child and a guardian ad litem.

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