SECTION 2
Guardians Ad Litem in Child Abuse and Neglect Proceedings: 
Clarifying the Roles to Improve Effectiveness

Section 2:  Historical and Legislative Perspective

A. Evolution of Child's Right to Representation

Historically, society believed that parents always acted in their children's best interests and that children's interests were the same as their parents.¹¹ Parents were permitted to care for, control, and discipline their children without state intrusion.¹² It was not until Dr. Henry C. Kempe published The Battered Child Syndrome in 1962 that child abuse was even recognized as an observable, clinical condition and a serious threat to children's lives. ¹³ Since that time, society has shown an increasing willingness to intervene in family matters to protect children.¹⁴ The Supreme Court has held that the state may limit parental authority in several ways, for example, by requiring school attendance and regulating or prohibiting the child's labor.¹⁵ The Court also recognized that the states have a compelling interest in protecting the physical and psychological well-being of children.¹⁶

The child protection movement gained momentum and, by 1967, every state had laws requiring professionals who work with children to report suspected child abuse and neglect to designated law enforcement or child protection authorities.¹⁷ As the magnitude of child maltreatment becomes increasingly apparent, states continue to refine and improve their child protection reporting laws and to enhance their service systems to meet the needs of abused and neglected children and their families.¹⁸ The legal system has also recognized that children involved in child protection proceedings may have interests in direct conflict with their parents or the state and, therefore, may have the right to independent representation.¹⁹

B. Child Abuse Prevention and Treatment Act of 1974

Congress addressed the growing problem of child abuse and neglect when it passed the Child Abuse Prevention and Treatment Act (CAPTA) in 1974, the first comprehensive legislation dealing with prevention and treatment. The states were required to provide for appointment of guardians ad litem in order to qualify for grants from the National Center on Child Abuse and Neglect (NCCAN), which was created by the Act.²⁰ While the Act did include language requiring that a GAL be appointed for every child involved in a child abuse or neglect proceeding, it did not offer guidance about what the qualifications of the GAL should be or what the GAL's duties should be. The subsequent federal regulations were equally ambiguous as to how the requirement should be implemented. The regulations stated only that the GAL's responsibility "includes representing the rights, interests, welfare and well-being of the child." ²¹ Significantly, the regulations fail to specify who shall serve as a GAL, and state only that the "state must ensure the appointment of a guardian ad litem or other individual whom the State recognizes as fulfilling the same functions as a guardian ad litem ...."²²

Without specificity in the language of the Child Abuse Prevention and Treatment Act or its enabling regulations, a review of the legislative history of the Act provides the only insight into the intent of Congress. ²³ The original version of the law passed by the Senate contained no mention of the need for independent legal representation of the child. It was not until subsequent committee hearings that this issue was addressed in testimony given by Brian Fraser, then staff attorney for the National Center for Prevention of Child Abuse and Neglect. ²⁴ It was Fraser who played the primary role in the inclusion of the guardian ad litem requirement in the final law. ²⁵

Fraser had previously authored an article on the role of guardians ad litem, which broadly defined their duties to include both legal and nonlegal activities. ²⁶ Fraser's view of the guardian ad litem was as a "special guardian" legally obligated to do everything within his power to insure a judgment that is in the child's best interests, ²⁷ including acting as investigator, advocate, counsel, and guardian. ²⁸

C. State Laws Implementing CAPTA

While Fraser's description of the role of the GAL may have been what Congress intended when it established the requirement for appointment, the states have not adopted this definition of the GAL. Thus, while all states have enacted statutes addressing GAL or legal counsel appointment in child abuse and neglect proceedings, many are worded very broadly, leaving interpretation tolocal jurisdictions regarding appointment requirements, the definition of the GAL, and models of representation.

1. COMPLIANCE WITH APPOINTMENT REQUIREMENT

There are still eight states in which GAL appointment is discretionary or required only in some cases. In Texas, Indiana, and Delaware, appointment is completely at the discretion of the presiding judge. Georgia, Louisiana, and Wisconsin require appointment only in termination of parental rights cases. Colorado requires appointment in abuse cases but leaves it to the judge's discretion in neglect cases. In Arkansas, appointment is required when custody is an issue. ²⁹

2. DEFINITION OF GAL

There is considerable variation in the way states define guardian ad litem. Some states define the GAL as anyone who represents the child's best interests. ³⁰ In other states, the GAL is an attorney who provides legal representation. Twenty states define the GAL in terms of specified duties which are described in statutes, court rules, or state policy.³¹ Only five of those have a comprehensive description of duties. ³² In other jurisdictions, the guidance is very general or nonexistent. ³³

3. MODELS OF REPRESENTATION

Four different models ³⁴ have been identified as the most common methods of representation. In the first model, an attorney is required although a volunteer may also be appointed. In the second model, both an attorney and a volunteer are required. In the third model, either an attorney or a volunteer may be appointed as GAL. In the last model, the volunteer may be appointed as GAL.

Twenty-three states require that the GAL be an attorney. ³⁵ Another twenty-three states have statutes for the appointment of either an attorney or a volunteer; the local judge makes the appointment. In a small number of states, GAL representation may be provided by social workers, probation officers, or court counselors. ³⁶ When attorneys are appointed as GALs, they may be private attorneys chosen from a list provided to the judge. In other jurisdictions, staff attorneys, like public defenders or legal aid attorneys represent the child. Some jurisdictions rely on a combination of private and staff attorneys.³⁷

Models of representation that include volunteers are also varied. In some jurisdictions the volunteer is appointed the GAL and may consult with an attorney on the program staff, a contract attorney, a pro-bono attorney, or in some cases, with a private attorney appointed jointly as GAL. In other jurisdictions, the attorney is appointed the GAL, and the volunteer serves as a Friend of the Court or in some other less clearly defined capacity.

Contents |  Sec.1 | Sec.2 | Sec.3 | Sec.4 | Sec.5 | Sec.6 | Footnotes