Commentary: Child representation in a perfect world.

• Author: Herman, Gregg

Byline: Gregg Herman

This is the last in a series of articles examining the role of representing children in family court actions. In the first article, I discussed the dispute between the ABA Family Law Section and the ABA Litigation Section regarding a lawyer serving in a non-traditional role by representing a "concept" of best interests, rather than representing a client. In the second article, I discussed the role of the GAL in Wisconsin and some of the issues associated with the evolution of that role. In the third article, I discussed some roles for a GAL, other than the role in Wisconsin. In this, the final article in the series, I will discuss what the role of a child's representative would be in a perfect world. The Flawed Reality The Litigation Section position is that, simply put, lawyers should be lawyers. Lawyers are not psychologists, child specialists or super-experts on custody and placement. Therefore, the investigatory role of a GAL is a lawyer performing a non-lawyer's role. This misfit of role and training is heightened by the proclivity of courts to rubberstamp the GAL's recommendation. There are, in fact, a number of cases where appellate courts have had to warn trial courts that the recommendation of the GAL is just that -- a recommendation and not evidence in and of itself. See In re Paternity of Stephanie R.N. 174 Wis.2d 745, 498 N.W.2d 235 (1993); Goberville v. Goberville, 2005 WI App 58, 280 Wis. 2d 405, 694 N.W.2d 503. In fact, in the original slip sheet opinion in Goberville, the Wisconsin Court of Appeals referred to the GAL's "report," a word they removed from their final decision after I wrote the court, with the aegis of the State Bar Family Law Section, pointing out the problems such a word would cause. Scrapping GALs entirely in favor of advocacy counsel is not a wise solution. Does anyone believe that a five-year-old should control his or her destiny? Or that we should sanction parents to "bribe" children with bikes, toys, privileges or even cash to win their "vote?" Eliminating a child's representative may be even worse. Trial courts want to do the right thing for children. Yet, of everyone in the courtroom, the judge knows the least about the case. The rules of evidence are not well-formulated to provide sufficient information and knowledge to the court, as they tend to limit the facts the court is entitled to consider. Welcome to Utopia So, in a perfect universe, what should be the role of a child's...