Advocating for Connecticut's Children During Their Parents' Divorces and Custody Disputes After Carrubba v. Moskowitz: the Past, the Present and the Future State of the Law for Attorneys for Minor Children and Guardians Ad Litem

• Publication year: 2021
• Pages: 229

Connecticut Bar Journal Volume 81.

81 CBJ 229. ADVOCATING FOR CONNECTICUT'S CHILDREN DURING THEIR PARENTS' DIVORCES AND CUSTODY DISPUTES AFTER CARRUBBA V. MOSKOWITZ: THE PAST, THE PRESENT AND THE FUTURE STATE OF THE LAW FOR ATTORNEYS FOR MINOR CHILDREN AND GUARDIANS AD LITEM

Connecticut Bar Journal
Volume 81, No. 3, Pg. 229
September 2007

ADVOCATING FOR CONNECTICUT'S CHILDREN DURING THEIR PARENTS' DIVORCES AND CUSTODY DISPUTES AFTER CARRUBBA V. MOSKOWITZ: THE PAST, THE PRESENT AND THE FUTURE STATE OF THE LAW FOR ATTORNEYS FOR MINOR CHILDREN AND GUARDIANS AD LITEM

BY CAROLYN WILKES KAAS* AND SHARON WICKS DORNFELD**

* Associate Professor of Law, Quinnipiac University School of Law

** Of the Danbury Bar

Few areas of law are as muddled and unsettled, for both lawyers and judges, as the law relating to the representation of children in custody cases. As we set forth below, there are only a few vaguely worded statutes and just a handful of cases - which, of course, can only address the precise question before the court - from which to derive guidance on the roles and expectations of advocates for children. Our state has not adopted a comprehensive set of standards for either attorneys for minor children ("AMCs") or for guardians ad litem ("GALs"). Some of the guideposts that do exist seem to point in different directions. Reasonable minds differ, as well, on the interpretation of those laws and cases. Finally, practitioners and judges have a range of personal philosophies regarding the approach that best protects children caught in the web of their parents' disputes.

The practice of appointing child advocates, and the choice of model of advocacy to employ, have tended to vary from judge to judge and from lawyer to lawyer. In our view, the lack of consistency in practice negatively affects the quality of advocacy and the uniformity and predictability of the manner in which the child's needs are promoted. These problems can erode the extent to which lawyers, judges and parents work together effectively to assure that the end result in each case is truly in the best interests of the child.

Between us, we have more than forty years of experience representing children in family law cases. We have endeavored in this article to trace the history and derivation of the current state of child representation law in Connecticut. We examine the last three decades of statutory and case law, and describe the efforts of various committees that have tried to draft a comprehensive set of guidelines. Then we review in detail the Connecticut Supreme Court's most recent pronouncement on the topic, its 2005 decision in Carrubba v. Moskowitz.(fn1) Next, we make educated "best guesses" about what these cases and statutes mean for judges, GALs, and AMCs, and what questions remain unresolved, even after the Carrubba case. Finally, we suggest a better way to assure that counsel can serve the needs of the children they are appointed to represent.

I. HISTORICAL PERSPECTIVE

The concept of appointing an attorney to protect a child's interests in a dispute between his or her parents is of fairly recent vintage. Indeed, even the concept that the child has legal interests separate from those of his or her parents is relatively new. The historical progression of children's "rights" can be traced from the early 19th century when children and their earnings were still considered the property of their fathers exclusively, through more balanced rights for their mothers, a willingness by the state to intervene to protect children from abuse by their parents,(fn2) and the rise of the parens patriae doctrine.

Until the Supreme Court decided In re Gault(fn3) in 1967, children were not considered "persons" under the 14th Amendment to the United States Constitution for any purpose. That case held, for the first time, that children were entitled to certain constitutional protections, including the appointment of an attorney in juvenile delinquency proceedings exposing them to incarceration. Following Gault, courts gradually began to appoint attorneys for children in other types of proceedings affecting child custody as well.

A. Connecticut History

In Connecticut, all proceedings involving children's custody were originally the exclusive provinces of the Probate

FN1Carrubba v. Moskowitz, 274 Conn. 533, 877 A.2d 773 (2005)

FN2DONALD T. KRAMER, 1 LEGAL RIGHTS OF CHILDREN 1.02 (1994)

FN3In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967).

Court. "In Connecticut since the earliest colonial days, 'a benign yet arbitrary 'power, which every sovereignty exercises, to take care of the persons and estates of infants,' has been conferred by statute upon Courts of Probate. Olmstead v. Olmstead, 38 Conn. 309, 319." Indeed, that grant of authority was long regarded as exclusive.(fn4)

By statute, however, much of the Probate Court's exclusive authority and jurisdiction over matters involving children has gradually been transferred to the Superior Court. Parent vs. parent disputes involving their children' s custody are brought to the Superior Court pursuant to General Statutes sections 46b-56 and 46b-61.(fn5) Although also considered "family relations matters" pursuant to General Statutes section 46b-1, child protection actions initiated by the state are heard in the juvenile session of the Superior Court as provided in section 46b-121. Additionally, common-law habeas corpus proceedings in the Superior Court have long been employed as a method of removing a child from one in wrongful possession into the hands of the person legally entitled to his custody.(fn6)

The Probate Court retains jurisdiction to hear matters involving guardianship, termination of parental rights and adoption as provided in sections 45a-603 et seq. and 45a-706 et seq., respectively.

B. Statutory Right to Representation for a Child

Separate sets of statutes confer on children differing rights of representation depending upon the nature of the proceed-

FN4 Dunham v. Dunham, 97 Conn. 440, 442, 117 A. 504, 505 (1922), rev'd on other grounds, 131 Conn. 385, 40 A.2d 754 (1944); Pfeiffer v. Pfeiffer, 99 Conn. 154, 157, 121 A. 174, 175 (1923).

FN5 Parent vs. parent disputes may be incident to a dissolution action between the parents (CONN. GEN. STAT. § 46b-56) or may be a separate custody proceeding between never-married parents (CONN. GEN. STAT. § 46b-61). Third-party (involving a non-parent) custody and visitation disputes only rarely may be heard by the Superior Court, usually when the non-parent is permitted to intervene in a pending action between the two parents. CONN. GEN. STAT. § 46b-57 provides for such intervention; CONN. GEN. STAT. § 46b-56b creates a presumption in favor of the parent. Interstate actions involving custody and visitation brought under Chapter 815o of the General Statutes (The Uniform Child Custody Jurisdiction and Enforcement Act), CONN. GEN. STAT. § 46b-1 15, et seq., are also heard by the Superior Court.

FN6Dunham, supra note 4 at 505.

ing and the court in which it is brought. Some statutes refer to "attorneys" or "counsel," while others authorize appointment of guardians ad litem. No statute spells out in any detail what the rights and responsibilities are of lawyers serving in any of the roles.

In probate proceedings affecting the guardianship of a child or the termination of the parental rights of the parents, General Statutes sections 45a-620 and 45a-717, respectively, provide that the court "may" appoint "counsel" for the child "to speak on behalf of the best interests" of the minor. In child custody cases between parents in the Superior Court, General Statutes section 46b-54 provides for the appointment of "counsel" for children. We address this statute in detail below. Children who are the subjects of neglect and abuse actions in the juvenile session of the Superior Court are entitled to the appointment of an attorney and/or guardian ad litem(fn7) pursuant to General Statutes sections 46b-129a and 46b-136.(fn8)

Section 45a-132 of the Connecticut General Statutes provides that "[i]n any proceeding before a court of probate or Superior Court including the Family Support Magistrate Division, whether acting upon an appeal from probate or otherwise," the court may appoint a guardian ad litem for "minors and incompetent, undetermined and unborn persons." Connecticut Practice Book section 25-62 effectuates the statutory right to a guardian ad litem in family relations matters, as it permits the discretionary appointment of a guardian ad litem "for a minor involved in any family matter."(fn9)

FN7 One person is expected to fulfill both roles simultaneously unless there is a conflict between the roles. It follows that the advocate fulfilling both roles must be an attorney. If the court splits the roles and appoints two advocates, the first advocate must remain in the capacity of AMC (because she would possess confidential information) and the court would appoint a separate guardian ad litem, who need not be an attorney.

FN8 Only in child protection matters must the court appoint counsel. Since 1974, the appointment of a guardian ad litem for children who are the subjects of neglect and abuse judicial proceedings has been mandatory. See CHILD ABUSE PREVENTION AND TREATMENT ACT, 42 U.S.C. § 5103(b)(2)(G) (1976), now codified as 42 U.S.C. § 5106(b)(1)(B)(xiii).

FN9 The Practice Book section includes a presumption that a family relations counselor will be appointed as GAL unless the court orders that another person, not required to be an attorney, be appointed. In practice, courts rarely, if ever, appoint a family relations counselor as GAL.

In each of these courts, the role of the child's representative - and the status of the child in the proceeding - varies. This article...