family law section seminar

Family Law Section Seminar

Resourceful & Effective Use of Guardians Ad Litem in Divorce Proceedings

Mary “Peg” Stevens

Carlson & Burnett, LLP

Language and Children in Interviews

Colleen Brazil, MSW, LIMHP Project Harmony

Friday, October 11, 2019

Embassy Suites Hotel – La Vista Conference Center

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RESOURCEFUL AND EFFECTIVE USE OF GUARDIAN AD LITEMS

Peg Stevens, Carlson & Burnett LLP

17525 Arbor Street

Omaha, Nebraska 68130

[email protected]

(402) 403-4133

HOW WE GOT HERE…

§ 42-358(1) The court may appoint an attorney to protect the interests of any minor child of the parties. Such attorney shall be empowered to make independent investigations and to cause witnesses to appear and testify on matters pertinent to the welfare of the children…the court shall order fix the fee…if parents can’t pay, court may order the county to pay (1972-present)

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PIECK V. PIECK 190 NEB. 419, 209 N.W.2D 191 (1973)

The District Court in its discretion may appoint an attorney to protect the interests of any minor children of the parties. See §42-358, R.S.Supp., 1972. The limits upon the discretion must evolve on a case by case basis. The Supreme Court found that the district court’s refusal to

receive evidence from Mr. Pieck on the issue of his soon to be ex-wife’s removal of the children from the state was in error, and the court’s refusal to appoint an attorney to represent the children on this issue was not in their best interests.

FORD V. FORD 191 NEB. 548, 216 N.W.2D 176 (1974).

This is a dissolution case where the paternity of the children was the only issue at trial. - When it appears the minor children in a divorce action may have interests, independent of parents, in the outcome of litigation, the district court should ordinarily appoint counsel to represent children.- In this case court identified the children’s legal interests with the paternity issue, as well as it’s relationship to their healthy emotional development.

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NYE V. NYE 213 NEB. 364, 329 N.W.2D 346 (1983)

The court has both inherent and statutory authority to appoint a guardian ad litem to protect the interest of a minor child engaged in or affected by litigation, along with the authority to award fees for guardian’s services.

RITTER V. RITTER 234 NEB. 203, 450 N.W.2D 204 (1990)

Although a guardian ad litem may be appointed pursuant to § 42-358 in a marital dissolution proceeding, such appointment is a matter within the trial court’s discretion…The appellant failed to demonstrate any prejudice from the absence of a guardian ad litem… No prejudice. No reversal.

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ROLE OF THE GUARDIAN AD LITEM

Betz v. Betz 254 Neb. 341, 575 N.W.2d 406 (1998) 1. The court in its inherent equitable powers, may appoint a guardian ad litem. A guardian ad litem may or may not be an attorney. 2. The guardian ad litem’s duties are to investigate the facts and learn where the welfare of his or her ward lies and to report these facts to the appointing court. These reports to the court, whether in written form or testimony by the guardian ad litem, including hearsay, shall be subject to the rules of evidence.

BETZ V. BETZ 254 NEB. 341, 575 N.W.2D 406 (1998)

3. A guardian ad litem may be an attorney, but an attorney who performs the functions of a guardian ad litem does not act as an attorney and is not to participate in the trial in an adversarial fashion such as calling or examining witnesses or filing pleadings or briefs.

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BETZ V. BETZ 254 NEB. 341, 575 N.W.2D 406 (1998)

4. From June 1, 1998, forward, when making and appointment of a guardian ad litem or an attorney to represent the interests of a minor pursuant to § 42-358 in forums other than the juvenile court, the appointing court, in the order making the appointment, shall specify whether the person is appointed to act as an attorney or a guardian ad litem pursuant to the statute. One person may not serve in both capacities.

GUARDIAN AD LITEM INVESTIGATES WHERE THE WELFARE OF THE CHILD LIES, AS MANDATED BY THE COURT OR AGREED UPON BY THE PARTIES

Welfare: (noun) the good fortune, health, happiness, prosperity of a person; well-being; to look after a child’s welfare

Lie(s): (verb) to be horizontal, recumbent, or prostrate position, as on a bed or the ground, rest in a horizontal or flat position

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- Family: parents, siblings, grandparents, etc., any other inter-relationally close relatives- Friends, parents of friends, neighbors, parents’ friends- School professionals- Coaches- Medical and other health care professionals- Structure and stability- Financial security- Parental stability- Relationship between parents- Relationship between children and parents

- IDENTIFY WHERE THE CHILD’S WELFARE DOES NOT

LIE OR IS BEING COMPROMISED.

- HOW, BY WHAT, BY WHOM

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WRITTEN REPORTS – “JUST THE FACTS, MA’AM, OR SIR”.

GUARDIAN AD LITEM INVESTIGATION MUST BE FAIR AND BALANCED AS BETWEEN THE PARTIES AND THE CHILD

TESTIMONY OF A GUARDIAN AD LITEM

Smith v. Smith 9 Neb.App. 975, 623 N.W.2d 705 (2001) – Guardian ad Litem testified at dissolution trial and her reports were received into evidence over the father’s hearsay objections. The father appealed.

The court reiterated the power of the court to appoint a guardian ad litem and the guardian ad litem’s duties, including reporting to the court in written form or testimony, including hearsay. Citing In re Interest of Kelley D. (1999), the court stated, “The presumption is that a trial court considers only such evidence as is competent and relevant…We find nothing in the record to overcome this presumption…Assuming without deciding that some of the guardian ad litem’s testimony and reports may contain evidence which is inadmissible, we will disregard such evidence in our de novo review of the record.

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HEISTAND V. HEISTAND 267 NEB. 300, 673 N.W.2D 541 (2004)

The court found no showing that the guardian ad litem possessed any scientific, technical, or other specialized knowledge which would assist the trier of fact to understand the evidence or determine a fact in issue (by virtue of being a guardian ad litem) . The opinion testimony of the guardian ad litem and the hearsay incorporated therein was erroneously admitted and disregarded in the de novo review.

GUARDIAN AD LITEM AS MEDIATION/SETTLEMENT

NEGOTIATION TOOL

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Language and Children in Interviews

Colleen Brazil, MSW-LIMHPProject Harmony

Source Material• Handbook on

Questioning Children. A Linguistic Perspective, 3rd

Ed.• Anne Graffam Walker,

Ph.D.• Julie Kenniston

One Child. One Voice. One Vision. Be Someone.

Interviewing Children• Even very young children can tell us

about experiences if we ask them questions in the right way.– Example: 2 year 10 month old boy

brought into clinic for spanking by mother’s boyfriend

– He had bruising to his butt and could say that mom’s boyfriend spanked him

General principles regarding children

• We do not question children.

• We question one child at a time. – Anne Graffam Walker


Language Learning• Language is shaped by experience• Children pick up words by:

– Real world context• What they see, hear and

experience around them

– Linguistic context• Do you want a cookie?• Do you want a spanking?


Language: Adults & Kids• Children and adults do not speak

the same language

• Language is not an all or nothing affair- cannot assume that a child understands all the words they are using– foot vs. feet


Language: Inconsistencies• Inconsistencies in children’s statements

are normal• Children are very literal in their language

– Example: Child denies going to the perpetrator’s house but later on states he went to the apartment

– Example: Did you put your mouth on his peepee? Child answers no as daddy put his peepee in the child’s mouth


Language and Development• Adult-like use of language does not

necessarily reflect adult-like linguistic or cognitive capabilities

• Young children in particular have difficulty attending to more than one or two things at once– Keep questions simple with only

one thought or idea per question


Language: Tips• Pausing is productive

– Adults talk too fast and children need time to catch up

• Children will not tell you that they do not understand you– May not understand that

they do not understand– Or do not feel like they can

correct adults


Children’s Responses• Children’s responses to your questions are not necessarily answers to your

questions– A response can fail to be an answer if:

• It does not supply the kind & amount of information required• The parties do not agree on what the meaning of the question was• One or both of the parties fails to recognize that the question or the

answer was ambiguous


Children and Recitation• Ability to recite a list is not the same as the ability to understand its contents

– Example: a child may be able to count to ten but cannot give you ten blocks

– Example: being able to recite the days of the week and then expecting they could tell you what day of the week the event happened

High vs Low Elaborators

• Children are not born with the ability to give adult-like accounts of their personal experiences

Narrative Model1. Setting

2. Initiating action

3. Central Action

4. Motivations/Goals

5. Internal response (emotions)

6. Consequences/ Conclusion


Some Families Talk/ Some Do Not • Great Britain Study of 5 yr olds

• 4 pictures shown to children and then asked to describe

• Talkers vs Pointer

• Poverty/ Abuse effects


Remember…• Familiarity matters

– Children do better talking about topics with which they are familiar

• Culture matters– We have a tendency to believe

that children have learned language in the same way

Suggestions for Questioning Children

• Keep it simple

• Be alert for possible miscommunication


Jargon• Short sentences – one idea per

sentence

• Use easy words

• Avoid legal jargon or other jargon in your work language


Definitions

• Check in with the child every now and then to make sure what you know a word to mean is also what they do

– Example: What does a _______ do?


Framing• Framing is good

– Newspaper or article – the title gives us an idea of what we will be reading

– Children will do better if they have an understanding of what they will be talking about

– Also can be used to go back to a subject to clarify


Language• Avoid tag questions

– Example: You saw it, didn’t you?– They are confusing to children

• Help the child shift from topic to topic– Now I want to talk again about

what happened in the living room


Avoid…• Abstract concepts

– Example: truth and lie

• The word “story”– To a child this can mean fiction or a narrative

account


Names and Places• Redundancy is a good thing

– Repeating names and places often is a necessary thing for children

• Watch pronouns– Use the person’s name rather than he/she– Also be aware of “that” – can be tricky for children


Children and Estimates

• Do not expect children under the age of nine or ten to give reliable estimates of time, speed, distance, size, height or weight

• Adults’ ability to do this is overrated.


Words, Words, Words: Time• First / last

– This works better for young children than before

– Five year olds still make mistakes with first and last

– Try it and if child is unable to do this – just move on


Words, Words, Words: Time• Yesterday / today / tomorrow

– Yesterday can be yesterday, two days ago or a month ago

– Tomorrow can be tomorrow or a few months from now

– The only one young children sometimes use correctly is today


Words, Words, Words: “Big”

– Remember big is a difficult term for a preschooler

– What is “big” to a preschooler is very different than “big” to a school age child or teen


Words, Words, Words: “Touch”• Touch

– Higher order word– We understand touch to mean

many kinds of contact– Children, especially young children,

do not– Part of the reason for doing the

touch continuum• Hugs, kisses, tickles, hitting,

spanking, privates


Words, Word, Words: Examples

• Always / never– This is hard for even adults to do– Requires a global search of

memory

• Any, anyone, anything, anywhere– More closely associated with

negatives than some – so use someone, something or somewhere


Words, Words, Words: Examples• Let / make

– Let implies permission– Make implies coercion

– Preschoolers mix up these two words

– Cannot assume the child understands these distinctions


Questions: Restricted Choice• Restricted choice questions

– Some points to remember– These questions are necessary at times– The problem is that children will think they have to pick from the choices– We must give them an out– Example: Was it in your room, the living room or someplace else?


Questions: Do you understand?• Asking children if they understand you

– not very helpful

– Often the child thinks they do understand

– Better to have them check back with you

– Example: I want to be sure I said that question the right way – what do you think I asked you?


Questions: Why?• Asking “why” questions

– 2 reasons they are problematic• “Why…you” questions can be

perceived as critical or accusatory• Why questions also require children to

self-reflect and look at cause and effect. Younger children cannot do this


Questions: How?• How Questions

– How questions can be hard for young children

– They are better at demonstrating

– Example: How did he do that? (Hard for a child to do)

– Show me what he did. (Easier for the child to demonstrate)


Questions and Answers• If the answer you receive from a

child does not make sense – check back to see how the question was phrased.

• Chances are you could have asked a better question.

• Using appropriate language at all times with children is very difficult – there will be times you ask a question you should not.


Questions: Do you have any?

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