published by Law Offices of Margaret K. Dore by Margaret K. Dore, Esq.
To view this article as it originally appeared in Divorce Litigation click here(pdf)
A. Introduction.
This article describes the practical realities of residential placement and scheduling (i.e., child custody and visitation) recommendations by court-appointed parenting evaluators and guardians ad litem. This article also questions whether given these realities, the practice of using such recommendations should be continued. At the very least, these realities suggest the need for reform.
B. The Evaluation Process.
Parenting evaluators and guardians ad litem investigate parenting arrangements and report back to the court with their recommendations.1Parenting evaluators are usually psychologists or social workers in private practice; guardians ad litem are often lawyers. Many, if not most, are hardworking and conscientious
1. Appointment.
Currently, it is not uncommon for evaluators/guardians ad litem to be appointed via nomination or suggestion.2 With this situation, attorneys can and do advocate appointment of evaluators/guardians ad litem whose views are compatible to their cases. For example, if a father claims that the mother is alienating him from the child, the father’s attorney might suggest evaluators known to believe that alienation is a dispositive factor for custody.
It is also permissible for attorneys to contact evaluators/guardians ad litem prior to appointment. Such contact is ostensibly to verify availability. Its real purpose can be to "test the waters" regarding one’s case. If the reaction is favorable, the attorney will move forward to advocate appointment. If the reaction is unfavorable, the attorney may look elsewhere. Certain attorneys also tend to work with certain evaluators/guardians ad litem. In other words, they develop business relationships. With these circumstances, the person appointed can be pre-aligned to one side.
2. Investigation.
Once appointment is made, the lobbying campaign continues. Each side provides the evaluator/guardian ad litem further information, often on an ex parte basis. This information can include hearsay and other materials inadmissible to a judge. The evaluator’s/guardian ad litem’s opinion is thus formed unfettered by the rules of evidence.
Evaluators/guardians ad litem also meet with the parents and the children. They may also conduct or commission psychological (profile) testing of the parents.
3. Report.
The results of the investigation, any psychological testing and recommendations of the evaluator/guardian ad litem are summarized in a report filed with the court.
In these reports, the evaluator/guardian ad litem may or may not rely on applicable law. This author has read multiple reports in which the law is ignored in favor of the evaluator’s/guardian ad litem’s favorite criteria. For example, this author commonly sees reports with the "friendly parent" concept as a determinative factor. The concept is not part of the Parenting Act and has been twice defeated in our Legislature.3 The author has also read reports in which recommendations are based on the evaluator’s own personal, social or cultural values, e.g., that the mother should not be designated primary parent because she "still" lives with her parents. The Parenting Act does not list this factor as relevant. Cf. RCW 26.09.187 and 26.09.191.
This tendency for evaluators/guardians ad litem to follow their own criteria has been documented in at least one reported decision. See: Gilbert v. Gilbert, 664 A.2d 239, 242 at fn.2 (Vt 1995) (describing survey results, including that "many [guardians ad litem] are not following applicable law"). This tendency is also documented in an article by Paul S. Appelbaum, M.D. He states:
When an evaluator recommends [a child’s placement] we are learning not about the relative capacities of the parties but, instead, about the relative values of the evaluators.
Paul S. Abbelbaum, M.D., "The Medicalization of Judicial Decision-Making", The Elder Law Report, Vol. X, No. 7, February 1999, p. 3, ¶1, last line.
4. Trial.
By the time of trial, the evaluator/guardian ad litem is in the position of defending his or her report and recommendations. Factors encouraging this phenomenon include the need of the evaluator/guardian ad litem to maintain his or her reputation, to thereby gain more appointments.
At this point, the evaluator’s/guardian ad litem’s recommendations can become more strongly stated, i.e., more "black and white". The recommended parent may thus be portrayed as more clearly "good" and the other as more clearly "bad". But the reality may be in the middle, i.e., that like all of us, neither parent is perfect.
At trial, the evaluator’s/guardian ad litem’s testimony typically includes hearsay previously provided by the parties.4 Repeated yet again, it can become grossly distorted--much like a story repeated multiple times as part of a children’s "telephone game".
Evaluator/guardian ad litem testimony can also include opinions on credibility.5 The author has seen as a basis for such opinions, a parent’s psychological profile, e.g., that a parent has an "elevated lie scale". The author has observed such testimony to be extremely prejudicial.6 In a seminar attended by this author, this same evaluator stated that a significant percentage of divorcing women, but not men have a "histrionic" personality disorder and that such persons "lie". She elaborated that histrionic women tend to "wear red" and be "the life of the party".
The above situation is quite different from the admission of an investigator’s testimony in other contexts. For example, an investigator in a criminal trial would not be allowed to testify as to his or her recommendations regarding conviction, as to hearsay, or as to his or her opinion on witness credibility.7
C. Judicial Reliance on Evaluators/Guardians Ad litem.
Most judges perceive evaluators/guardians ad litem as neutral investigators or advisors.8 Evaluator-psychologists can be held in especially high esteem.
With such status, their reports, testimony and recommendations can become the factual standard for trial. The burden of the non-recommended party is thus to disprove a factual standard. The burden of the recommended party is merely to provide corroboration for the standard. In Gilbert v. Gilbert, 664 A.2d at 242 §C, the Supreme Court of Vermont found such burden-shifting so unfair as to require reversal.
A related problem is the legitimization of improper evidence through the evaluator/guardian ad litem. In one record reviewed by this author, the evaluator testified that the mother’s family was "manipulative" and dishonest. On cross examination, the evaluator conceded that as a basis for her opinion, she was relying on unsigned written statements provided by the father. Had the father sought to admit these statements through himself, they would have been viewed as hearsay, lacking authenticity and self-serving. But admitted as they were through the evaluator, their thrust (manipulative/dishonest) was instead perceived as fact. Such "fact" was then incorporated into the court’s decision; the child was removed from the mother’s primary care.
There is authority in other states critical of such reliance on a guardian ad litem’s hearsay. S v. S, 571 N.W.2d 801, 809 (Neb. App. 1997), overruled on other grounds, states:
We see no merit in giving credence to the opinion of a guardian [ad litem] when that opinion is based in large measure on the very hearsay that our legal system holds to be improper.
There are also court rules limiting admissibility of a guardian ad litem’s report. Cf. Gilbert v. Gilbert, 664 A,2d 239, 241 (Vt. 1995) (regarding V.R.F.P. 7).
The law in Washington is, however, contrary. Fernando v. Nieswandt, 87 Wn. App. 103, 107-8, 940 P.2d 138 (1997) seems to state that a guardian ad litem’s recommendations and testimony are automatically admissible per RCW 26.09.220 and RCW 26.12.175. Given the realities described above, such carte blanche admissibility is ill-conceived. Regardless, Fernando’s reliance on 26.09.220 and 26.12.175 is misplaced. RCW 26.09.220(2) states that "the investigator’s report may be received in evidence", not that it "must" or "shall" be admitted. (Emphasis added). Similarly, RCW 26.12.175 does not address admissibility; it states that the guardian ad litem’s role is to "report to the court". "Report to the court" does not necessarily imply admissibility.9 Fernando’s reasoning has been otherwise criticized.10
D. De Facto Decision Making.
With the perceived neutrality of evaluators/guardians ad litem, their recommendations are often determinative.11 But as described above, evaluators/guardians ad litem are not neutral. Once they make their recommendations, they are in the posture of defending them; the "evidence" they rely on is inherently unreliable, the result of an off-the-record lobbying campaign.
With such circumstances, there has been some movement to eliminate guardians ad litem from child custody cases--at least where there are two parents available to litigate the issue. Seattle University Law Professors Raven Lidman and Betsy Hollingsworth state:
Most contested cases have no need for any court appointed individual. [We] submit ... that such appointment more often undermines the normal functioning of the courts ...
Lidman and Hollingsworth, "The Guardian ad Litem in Child Custody Cases: The Contours of Our Judicial System Stretched Beyond Recognition", George Mason L. Rev., Vol. 6:2, (1998), p. 261.
E. Advocacy of a New Paradigm.
In summary, evaluators/guardians ad litem can be hardworking and conscientious. There are, however, serious problems with the system. Its realities have little resemblance to an orderly determination of truth based on the evidence. It is time to reconsider this paradigm--for the sake of the children.
* * * *
Margaret Dore is a solo practitioner in Seattle. Her practice emphasizes appeals, including those involving the residential placement of children. She is a guardian ad litem for the King County Superior Court (guardianship panel).
1. Cf. RCW 29.09.210, RCW 26.09.220 and RCW 26.12.175(1)(b).
2. Evaluator/guardians ad litem are also are appointed via a guardian ad litem list and the court’s sua sponte ruling.
3. Cf. Margaret K. Dore, The "Friendly Parent" Concept: At Odds With the Parenting Act, published: WSBA, Family Law Section Newsletter, Spring 1999; King County Bar Bulletin, March 1999; and Clark County Bar Association News, June 1999. See also: HB 2406 (1998 legislative session); and SHB 1362 (1999 legislative session).
4. Cf. Lidman and Hollingsworth, The Guardian ad Litem in Child Custody Cases: The Contours of Our Judicial System Stretched Beyond Recognition, George Mason Law Review, Vol. 6:2 (1998), p.279.
5. Lidman and Hollingsworth, The Guardian ad Litem in Child Custody Cases: The Contours of Our Judicial System Stretched Beyond Recognition, George Mason Law Review, Vol. 6:2 (1998), p.279.
6. Cf. Marriage of Luckey, 73 Wn. App. 201, 208, 868 P.2d 189 (1994) ("the use of profile testimony is unfairly prejudicial"); and State v. Carlson, 80 Wn. App. 116, 123 at ¶2, 906 P.2d 999 (1995
[No] witness may give an opinion on another witness’ credibility ... An expert opinion [on credibility] will not "assist the trier of fact" ... because there is no scientific basis for such an opinion save the polygraph, and the polygraph is not generally accepted as a scientifically reliable technique. (footnotes omitted).
In a seminar attended by this author, this same evaluator stated that a significant percentage of divorcing women, but not men have a "histrionic" personality disorder and that such persons "lie". She elaborated that histrionic women tend to "wear red" and be "the life of the party".
7. Lidman and Hollingsworth, "The Guardian Ad Litem in Child Custody Cases: The Contours of Our Judicial System Stretched Beyond Recognition", George Mason Law Review, Volume 6:2 (1998), p. 279, ¶ 2.
8. Lidman and Hollingsworth, "The Guardian Ad Litem in Child Custody Cases: The Contours of Our Judicial System Stretched Beyond Recognition", George Mason Law Review, Volume 6:2 (1998), p. 279 at ¶4; and Fernando v. Nieswandt, 87 Wn. App. 103, 107 at ¶2, 940 P.2d 1380 (1997).
9. Cf. S v. S, 571 N.W.2d 801, 809 (Neb.App. 1997), overruled on other grounds ("We suggest that the primary function of the guardian ad litem’s report is for the guardian [ad litem] to demonstrate to the judge that [he or she] has performed his or her duty"). The report could also be used for the purpose of a preliminary hearing to determine if trial is necessary.
10. See: Lidman and Hollingsworth, "Rethinking the Roles of Guardians ad Litem in Dissolutions: Have We Been Seeking Magicians," Washington State Bar News, 12/97 (regarding the "contradictory impulses" in Fernando).
11. See: Lidman and Hollingsworth, "The Guardian ad Litem in Child Custody Cases: The Contours of Our Judicial System Stretched Beyond Recognition", George Mason L. Rev., Vol. 6:2, (1998), p. 297 at ¶2; ("[m]ore often, ... [t]he judge merely confirms the guardian ad litem’s decision"); and Gilbert v. Gilbert, 664 A.2d 339, 242 at fn. 2 ("judges rely heavily upon the recommendations of guardians [ad litem]").
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