COVER STORY

Cover of the February 1997 NCJ


 

Children of divorce: Who speaks for them?

by Jim Hight

 

In Humboldt County's family court, where people come to sever the ties they once vowed to hold forever, there are stories sad enough to disenchant the most tender-hearted romantic. Lovers have become blood enemies, and in their shaking hands they swing their children at each other like clubs.

One man hasn't seen his two children in six months because his abusive ex-wife and her family conspired to label him an unfit parent. His wife says that the man is mentally ill and incapable of even getting the kids off to school.

Outside the courtroom a woman waits for her case to be called, trying to look brave in her navy-blue business suit, but trembling inside as she wonders how to fight for her three kids against her husband and the expensive lawyer he's hired. The father, if asked, would say that he has no alternative but to seek full custody since his ex is still smoking dope day and night and leaving the kids in filthy clothes.

These parents' stories were slightly altered to preserve anonymity, but stories like theirs are presented to judges nearly every day in Humboldt County. About 100 families per year come to court so embattled or damaged that the judge appoints a special court officer ­ a guardian ad litem (GAL) ­ to investigate the family's situation and advocate for the children.

Some parents welcome the guardian ad litem's intervention and find it helpful. Some resent it bitterly, saying the guardian believed the wrong stories and made recommendations that were bad for the children.

Last fall some of the most frustrated and desperate of these parents called me.

 

The use of GALs in custody disputes has been adopted in many states and counties. In Humboldt County the reliance on a guardian ad litem's recommendations in family law increased soon after the Center for Child Advocacy (CCA) was formed in 1991 by attorney Eris Wagner and Sherlyn Dancer Davis, who has been director of the center and head guardian ad litem since.

The center was established to represent children and teens in what are called juvenile dependency cases, where the government has taken custody of a child because of possible abuse in the home. But as the volunteer-based Court Appointed Special Advocates (CASA) expanded and took on more of those cases, the CCA was called upon by judges to represent children in difficult divorce cases.

With modern divorce laws presenting fewer reasons to fight over who is at fault or how property is divided, many parents choose to argue over the kids.

"Having no other place to battle, no other issues to battle over and no real avenue for continuing the marital dispute, custody has become ... the new battleground," wrote Bay Area custody expert Philip Stahl in his 1995 book Conducting Child Custody Evaluations.

Often the attorney for one parent will request appointment of a GAL. But judges will also appoint a guardian on their own, especially in cases where sexual abuse, drug abuse or mental illness are alleged by one party, or where extreme acrimony is present. (GALs are also appointed to advocate for the children of some unmarried couples that come to court with custody conflicts.)

I first heard about the guardian ad litem from two people who called to ask me to look into the CCA and Davis.

One of the callers didn't say her name or call back, but the other provided detailed information, including names of other people who felt burned by the GAL. Soon after that, a letter to the Times-Standard raised more complaints. I called the woman who signed it and interviewed her, as well as one of her acquaintances who also had complaints.

In December I got four more calls from people who had received post cards informing them of my investigation from a Southern California group known only as C.O.L.A. These people had responded to a classified ad in the Times-Standard last spring seeking people who felt the GAL was "biased" and "unprofessional."

While these parents were willing to send their names and addresses to C.O.L.A., most would only speak to me on the condition of anonymity. They were intimidated, they said, by the GAL's power to write unfavorable custody reports. They'd tell me about a conversation or incident with the guardian, then say "but you can't mention that because she'll know who I am!"

The most common complaint was that the GAL (usually Davis, but in some cases one of the other people who've held the CCA's second guardian ad litem position) believed their spouse's "lies" and took that person's side in custody recommendations.

Another frequent criticism claimed the GAL favored shared custody so strongly that she ignored or played down evidence that one spouse was abusive.

Some accused the GAL of being verbally abusive. Others said she was incompetent and unqualified. Some said she tended to favor the party that had originally requested her appointment. And one said she made her report without interviewing the children.

 

I spoke to eight people in all (seven women and one man) who told sad, disturbing stories about their experiences with a guardian ad litem. They seemed earnest and sincere, and a couple even began to cry during our conversations.

Yet they were all people who had lost hard-fought contests over the most sensitive issue imaginable: their own children. Were they in such pain over their losses that they couldn't see the justice in the guardian ad litem's recommendations? Were they trying to carry on their vendetta against their ex through the media?

Or were their concerns, taken together, indicative of a major problem in the family court system?

Davis and Judge John Buffington, the presiding family court judge, agreed to be interviewed. But before meeting with them, I wanted to dig around more.

Family law attorneys weren't much help, perhaps too busy to return my phone calls. But perhaps, as some of my anonymous sources believed, family lawyers muted their complaints against Davis, since she is called upon to evaluate the parenting abilities of many of their clients.

A receptionist at a law office told me, "Everyone knows you're working on this story." And another person who works in the legal profession said: "This is a very tight legal community. Anybody who rats on anyone else usually goes down."

One lawyer who did return my call was Deanna Beeler. She said she requests a GAL's appointment in cases where "there's some difficulty involving the kids, like drug use or violence (by parents) or the threat of those, and I feel like my client is relatively blameless ... The GAL can talk to a lot of people and come up with recommendations quickly.

"Usually I'm pretty pleased with (the GAL's recommendations). I do tend to ask for their appointment more often than I resist it," she said.

Attorney Jackson Morrison answered his own phone one lunch hour and explained why he once challenged the GAL's legal standing but is now satisfied with the guardians' qualifications and performance.

The GAL working on one of his client's cases in 1995 was an inexperienced graduate student working under Davis, said Morrison, and her conclusions didn't merit the weight they were given by the court. Judge Buffington agreed to disregard parts of the report but issued a decision ­ which he sent to all family law attorneys ­ affirming Davis's standing as an expert witness.

Morrison still thinks the grad student was underqualified, but said, "There's no question that the present court guardians are qualified to make these reports."

A deputy public defender who works on child abuse cases, James Fowler, said, "I've always found Dancer Davis to be very honorable and trying very hard to be fair in what is clearly a very difficult job."

Sandra Stanley, an attorney who practiced here for three years but now lives in Grass Valley, said that Davis "has tremendous common sense and wonderful intuition and instincts" but is "overwhelmed with work."

Stanley believes the quality of the investigations done by Davis and her associate GAL went down as their caseload increased. "There are times when she sometimes maybe makes a wrong judgment or some sort of biased judgment."

But Stanley believes that most parents who complain about her do so because of their inability to focus on the needs of their children. "I call it 'divorce psychosis.' The parents are totally incapable of seeing what they're doing. That's why a lot of people hate Dancer (Davis). She sees perfectly well what they're doing and tries to stop it in some way."

 

Although judicial ethics prohibit Davis, Jean LaPietra (her associate guardian ad litem) and Buffington from commenting on specific cases, they responded to the complaints in a general way during a long interview in the judge's chamber.

In the process, they sketched a picture of a court and child-protection system straining to do difficult work with few resources in highly conflicted situations.

"We could use two more full time people," said Davis. "In every case we do the best job with the resources we have. Some cases will require talking to a half-dozen people to the get the information we need. Some cases may require talking to 30 people."

When the safety of a child is in question, they visit the family immediately and let the judge know what's going on. But in most cases, their investigation takes about 30 days.

They usually start by interviewing both parents, then asking for references who can verify their version of events. They favor people outside the immediate family who can be more objective.

"If I was involved in a custody case and you were interviewing my mother, she'd probably tell you that I was mother of the year. ... If we interview a neighbor ... they might say, 'This parent is a really good parent when they're not drinking alcohol,'" Davis said.

They generally interview the children once, but sometimes forego that step with very young children. This interview, they said, is one of the most delicate parts of their job.

"We try not to ask them overtly 'Who do you want to live with?'" said Davis. "We talk to them about their lives, 'Where do you go to school? Who are your friends? Where do you live? ... Who makes your dinner? Do you have a dog? Who takes care of the dog?'"

When a child expresses a strong desire not to see one parent, the guardians say they have to assess whether the child has been coached. "Some children might say 'I don't want to see the other parent at all.' Then you get to talking to them about why and they can't give any details. All they can give you is somebody else's rote recitation," said Davis.

"Sometimes it's tragic, heartbreaking," she continued. "I have left some interviews feeling so sad that a child is in the position of needing to prove loyalty to one parent so badly that they have to deny their love and affection and relationship and caring from another parent."

Occasionally the GALs visit homes, but they say this is only useful when it's a surprise visit, and that they usually don't have the time. A preferred tactic is to ask each parent to come separately with the children to the CCA office, where the guardian observes the family in the waiting room before interviewing them.

"Sometimes you see amazing differences," said LaPietra. She recounted one case where the first parent "had absolutely no control over the kids," and there was bickering, fighting and eventually a bloody nose. "The other parent sat down, read a book to the kids, interacted, played hangman."

After their investigations are done, the guardians recommend custody and visitation arrangements, often with specific guidelines about everything from schedule to schooling, financial support to discipline. (The reports are sealed to anyone but the judge, the parents and their attorneys.)

These conditions are intended to be short term, while the family works out a long-term agreement with court mediators or in litigation. But in some cases (where both parents are heavy drug addicts, for instance) the GAL's oversight can be maintained for several years. And the GAL can also be recalled to investigate a case years after a divorce is finalized when parents come back to court with new custody disputes.

Davis said that she and LaPietra put a premium on allowing children "frequent, continuing contact with both parents." If parents have behaviors or attitudes that are in the way, they recommend counseling, addiction treatment, anger management classes or other services.

Sometimes they recommend only supervised visits and place the children with the more stable parent, another relative or in a foster home while the parent addresses his or her problems or builds better parenting skills. And in some extreme cases they recommend that a parent have no contact with the children.

But they say they try to be more than just the parent police. "I don't want to ignore parents. It's important to meet their needs to some degree so they're healthy and happy enough to do what they need to do for their children," said Davis.

"We try to help parents focus on the big picture and the long haul. (Telling them, for example,) 'If you build a foundation now of good communication, you're going to prevent problems later on, like they're not going to be able to play you against each other as easily when they're adolescents.'"

Neither Davis nor LaPietra have strong academic credentials. LaPietra holds a bachelor of arts in anthropology and Davis has no degree. LaPietra has been a social worker since 1979, and worked for many years in probation and child welfare in Humboldt County.

Davis was an early leader of Humboldt Women for Shelter, when the group was basically an underground railroad for battered women and children. And since 1981 she's held professional positions in child abuse prevention and treatment, parent education and family support services.

Both women said emphatically that they have never treated parents in an abusive manner, although they acknowledged that some parents may feel abused.

"There are times when we give people some firm direction about what they need to do different ... certainly things get heated at times," said Davis.

They described being cussed out, screamed at, spied upon and worse by irate parents, and say they do their best to prevent personal feelings against difficult parents from clouding their judgment.

Asked if they have a bias toward the parent who sought their appointment, they both said no, and that they often didn't know which parent asked for their oversight.

Davis seemed to pooh-pooh the idea that parents resented the control she and LaPietra come to have over their lives. "We can't make them do anything. We can explain to them what is likely to happen if they don't follow up (on recommendations), and we can explain the benefits to them and their children of following up on our referrals."

LaPietra added that the judge has sometimes decided against the GAL's recommendations. "But not very often," chimed in Buffington. "Generally I'll approve the GAL's recommendation unless there's some question about the information."

Davis and Buffington both pointed out that anyone dissatisfied with the GAL's report can challenge it in court. But that takes more money for attorneys, which charge from $100 to $200 an hour for family law work.

If parents don't have that, the GAL's recommendations can become a de facto court order.

And for the disgruntled parents, that seems to be the most irksome facet of the GAL's involvement: All of a sudden some stranger has power over them and their children.

 

While they've known that some parents are critical of their methods and decisions, the two guardians and Buffington were surprised by the scope and intensity of the complaints that I had heard.

Toward the end of our interview Buffington said: "You'd hope that if they felt that way they'd come to the court and say, 'Hey, your GAL abused me!' I've never heard that from anybody. But we're going to make that part of our process from now on. If you've got a complaint about court personnel, feel free to anonymously file a complaint."

This statement resonated with what Buffington had told me earlier about his desire to make the divorce process less a brutal gauntlet for separating couples.

At the beginning of the divorce process, all parents watch a videotaped message from Buffington urging them to work out agreements on their own. The more they rely on the court to adjudicate their differences, the less control they'll have over the outcome.

"Our society has made litigation the way to solve these sorts of problems, but it's the wrong sort of forum to solve family problems," he said.

The video and the mediators who patrol the corridor outside family court every morning are the advance guard of a Family Court Support Unit that Buffington hopes to develop to help parents ­ especially those without attorneys ­ understand the system and work out their differences without going to court.

Family law judges and legislators around the country are advocating the creation of these types of extra-judicial programs to settle divorce issues without litigation. The Humboldt County Court has has submitted a federal grant request for $378,000 to fund such a program here.

Such an alternative system for dispute resolution would surely help many families, perhaps even some who would otherwise find a guardian appointed for their children. But the court will still rely on a guardian ad litem for many difficult or potentially dangerous custody disputes.

 

To balance the perspective I'd gotten from the dissatisfied parents, I sought out through public records some other people who had found their families under the GAL's magnifying glass.

One woman gave a mixed review, saying her child's first guardian, whom she described as the "county attorney," put the boy at risk by allowing her abusive ex-husband to retain partial custody. After three years, her son's case was taken over by Davis, who "stood up for our rights completely."

Another said her ex "conned" Davis but that her work was "okay," and she seemed to be sincerely looking out for the needs of the children.

Four others gave wholeheartedly positive assessments of the guardian, who was Davis in each case.

One woman said Davis helped sort out a severe conflict between her and her soon-to-be ex. Now she says the father is breaking agreements, and she's keeping a journal in hope of persuading Davis to intervene.

Another parent, a man, said Davis was fair, competent and committed to his children's best interests.

And a woman who came in person to the Journal office said that Davis was instrumental in helping her become not only a better parent but a healthier person.

She had asked a judge to appoint a guardian ad litem after her husband disappeared with their child for a week. But Davis turned the tables on her, telling her she needed to enroll in drug treatment and attend Narcotics Anonymous meetings. In the meantime, her parents took custody of the children.

"I didn't like doing the drug and alcohol program. It was five months of my life and a big financial strain, but it is the best thing I ever did," she said.

She was gradually allowed more visitation with her child, and now the boy lives with her while she and her ex continue to battle through custody and property issues.

Her only complaint: Davis didn't have more time to pay attention to her case.

"I think (the Center for Child Advocacy) is grossly understaffed. She has the weight of the world on her shoulders, and in her heart, the best interest is for the kids."


Comments on this story? E-mail the Journal: ncjour@northcoast.com

 

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