The Need for Child Representation Reform: Policy Issues and New Roles for Family Specialists

Abstract

Children are being introduced into the legal system in greater numbers than ever before. Reported cases of child abuse and neglect are on the increase, due to a heightened public awareness of child victimization in recent years and to mandatory reporting laws for professionals (Erickson, McEvoy, & Colucci, 1984). Furthermore, an estimated 40% to 50% of all children will experience their parents' divorce, the majority of these while the children are still young (Emery, 1988). These factors indicate that the population of young children in need of legal assistance will not diminish in the coming years. In the course of a custody contest, abuse-related or not, a parent's wishes do not necessarily represent the best interests of the child. Thus, the child's interests may not be well served through the parent's attorney, who has the legal obligation to advocate for the parent (Davidson & Horowitz, 1984). Likewise, the effectiveness of child protective services social workers, who volunteer their time as advocates, may be compromised by conflicts of interest if they are affiliated with the agency representing the parents (National Legal Resource Center on Child Advocacy and Protection, 1981). Children need to be guaranteed representation that is independent of parental interests. Almost 20 years ago the federal government recognized this need for independent representation of children by passing the Child Abuse Prevention and Treatment Act (CAPTA) of 1974. CAPTA requires all states to provide advocates for children involved in any child abuse or neglect proceedings, whether civil or criminal (Wiehe, 1992). These independent child advocates, who may also be appointed in certain divorce and custody cases, tend to be known by the collective term of guardian ad litem (GAL). Their role is to ensure that the best interests of children do not become secondary to those of the parents. More recently, the Victims of Child Abuse Act of 1990 allocated federal funds for the expansion of GAL programs nationwide. Unfortunately, as will be demonstrated in the following sections, evidence suggests that the system of child advocacy is not working in many states and that reassessment is in order. With this in mind, shortcomings of the current system will be presented, some solutions proposed, and ways in which family specialists can and should get involved in the process of reforming child representation will be identified. FUNCTIONS AND OBLIGATIONS OF GALS Four general functions of the child representative have been identified by Landau, Salus, Stiffarm, and Kalb (1980): to discover all facts relevant to the case ... to ensure that all relevant facts are brought before the court ... to ensure that the court is aware of all dispositional options ... and to ensure that the child's interests are fully protected in court proceedings (p. 12). In the course of fulfilling these obligations, the GAL may encounter a number of difficult situations that require diverse skills and knowledge. Social scientists and legal researchers have identified some common issues and problems in the investigation of child abuse and neglect cases, as well as custody disputes, which are outlined below in terms of their relevance to each of the four functions. INVESTIGATION AND DISCOVERY Gathering relevant facts about a family in crisis can be quite challenging. First, parents' wishes may be directly opposed to the best interests of the child (Redeker, 1978). In a child maltreatment case, for example, parents and others may be less willing to cooperate with the investigation if the alleged perpetrator is a family member or significant other (Davis, 1982; Martin, 1992; National Legal Resource Center on Child Advocacy and Protection, 1981). Or, in the midst of a divorce custody case, spouses may knowingly or unknowingly distort facts relevant to one another's parenting abilities in an effort to gain custody (Sprenkle, 1988; Weitzman, 1985). …