Giving Children a Right to Be Heard: Suggested Reforms to Provide Louisiana Children a Voice in Child Custody Disputes

• Author: Rebecca Hinton
• Position: J.D./B.C.L. Candidate, May 2006, Paul M. Hebert Law Center, Louisiana State University
• Pages: 1539-1570

I wish to thank Professor Lucy S. McGough and my senior editor, Katherine Krupa-Green, for their invaluable assistance, guidance, and suggestions throughout the drafting of this article. I would also like to thank my husband, Ricky, for his abundant patience, support, and compassion not only as I was preparing this paper, but also throughout my entire law school career. Finally, I extend my appreciation to my parents for their constant support and love which have always reassured me that I could achieve any goal I set for myself.

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I Introduction

As the divorce rate has continued to increase over recent decades, more and more children are affected by their parents' divorce. Divorce is a devastating time for children.¹ It is overwhelmingly recognized that children, often torn between parents during the divorce, face many emotional, psychological, and even financial harms due to their parents' decision to end the marriage.² Many parents do not discuss with their children the changes that will occur in each child's life.³ Children's quiet voices are often lost amidst the bickering and sorrow of the parents, preoccupied with their own divorce-related problems.⁴ Due to their feelings of powerlessness throughout the entire divorce, years after the divorce and custody disputes are settled, many children remain angry and frustrated.⁵ While it is ultimately the parents' decision to divorce, children are inevitably affected by this decision,⁶ and are nevertheless disregarded when the time comes to make the custody determination that will affect the remainder of their minor years.⁷

While it is apparent that children who lack discretion should not make the decisions that will impact the remainder of their minority, older children may have logical and justifiable reasons in preferring a particular custody arrangement. In studies in which children have been given the opportunity to voluntarily participate in the custodyPage 1540 decision, many children have been eager to discuss their viewpoints on the events occurring in their lives.⁸ Moreover, exclusion from participation often increases children's already present feelings of isolation and frustration.⁹

Unlike juvenile delinquency and child abuse proceedings, children involved in contested custody disputes do no have an unconditional right to representation created either by the federal government or the Louisiana Legislature. Many legal scholars believe that children deserve a right to appointed counsel in divorce proceedings, as the juveniles in other child-centered proceedings possess.¹⁰ Appointed guardians ad litem, however, will not ensure that the child's voice will be expressed. This lack of expression is the aspect of divorce that results in the greatest amount of psychological problems and frustrations in children years after the proceedings have ended.¹¹ Additionally, with more divorcing couples resorting to alternative forms of dispute resolution such as mediation, the Louisiana Legislature likewise does not provide children with a means to participate in mediation sessions.

Many states are beginning to recognize the harm that adversarial proceedings can have on families and are now providing more "party-friendly" procedures to resolve their custody disputes outside of the courtroom. Some jurisdictions require parents to first attempt mediation;¹² other jurisdictions give courts discretion to mandate parents' attendance in divorce education classes. Such classes are designed to help parents agreeably resolve their problems and better protect their children during the custody dispute.¹³ While the various state legislative changes have attempted to shelter children during custody proceedings, many of these new laws continue to fail in recognizing the child's potential role in contributing to their future custody arrangement by neglecting to provide for child participation in the custody decision. Louisiana is one such state that fails to recognize both the psychological and emotional benefits which can result from child participation.

This article examines whether children should have a right to be heard in contested custody disputes and the risks that children,Page 1541 parents, and society as a whole encounter by the exclusion of children from these proceedings. First, Section II provides an examination of the origin of child representation by examining In Re Gault and the Child Abuse Prevention and Treatment Act (CAPTA), and concludes by discussing the lack of federal guidelines for juvenile representation in custody proceedings. Next, Section III discusses the harm that can result to children by settling custody disputes in an adversarial setting. Thereafter, Section IV provides an overview of potential reforms the Louisiana Legislature could study to allow children the opportunity to participate in settling the custody dispute by first analyzing who presently represents Louisiana children and the alternative methods states are employing to resolve custody issues. Next, Section V discusses what is meant by the child's "voice." Finally, Section VI addresses the current Louisiana approach to resolving child custody disputes. Section VI thereafter reiterates reform suggestions and provides ways in which the child's voice can be heard more clearly in Louisiana. This paper will urge the Louisiana Legislature to recognize the harm that children face in the current adversarial setting of custody proceedings and request that the legislature evaluate these suggested alternatives which allow children the voluntary opportunity for involvement in the custodial decisions that will affect their minority years.

II Categorical History of Proceedings Concerning Children

The latter half of the twentieth century was a time in which courts and legislatures were concerned with increasing rights and protections for children involved in court proceedings. The impetus for child representation quickly spread from the criminal forum to the civil setting relating to child protection cases. Representation for children in contested custody disputes, however, has been slow to provide for independent child representation in every case.

A Juvenile Delinquency Proceedings: In Re Gault

In 1967, the United States Supreme Court acknowledged in the case In Re Gault¹⁴ that juveniles involved in delinquency proceedings have a constitutional right to counsel.¹⁵ This landmark case wasPage 1542 significant in the realm of child representation because "it was the first time the United States Supreme Court mandated the appointment of attorneys for children."¹⁶ In addition to granting children the right to counsel, the Supreme Court further expanded the rights of children by giving them other adult-type rights such as, "the right to remain silent, to confront and cross-examine witnesses."¹⁷ Allowing juveniles these additional rights affected the role of their appointed counsel by generally requiring counsel to represent delinquent children as if they were adults.¹⁸

B Child Abuse and Neglect Proceedings: CAPTA

In the 1960s and 1970s following In Re Gault, the concept of using guardians ad litem to represent children spread from the criminal arena to the civil setting of child protection cases.¹⁹ With the passage of the Child Abuse Prevention Treatment Act of 1974 (CAPTA), the Federal government mandated that states provide attorneys to serve as guardians ad litem for children in every child abuse and neglect proceeding, and thereafter enforced this requirement by threatening to terminate federal funding for states that did not comply.²⁰ CAPTA required states to appoint guardians ad litem for children to "represent the rights, interests, welfare and well-being of all children in abuse and neglect cases."²¹

Originally, CAPTA mandated the appointment of an attorney to represent the child; however, revisions to CAPTA clarified that a guardian ad litem may be an attorney or a court-appointed special advocate (CASA), or both.²² The allowance for the use of CASAs as well as attorneys in child abuse cases was a reaction to the CASA movement²³ spreading throughout many states.²⁴ Revisions toPage 1543 CAPTA further clarified the guardian ad litem's role as investigator of the child's harmful family environment and protector of the child's best interest before the court.²⁵

Unlike juvenile delinquency proceedings in which appointed counsel generally represent the child as if she were an adult, in child abuse and neglect cases a guardian ad litem is...