Compromising the Best Interests of New Hampshire's Children:the Failure to Fund Guardians Ad Litem for Children Living in Poverty
| Citado como | Vol. 53 No. 2 Pg. 0010 |
| Páginas | 0010 |
| Año de Publicación | 2012 |
2012 Summer, Pg. 10. COMPROMISING THE BEST INTERESTS OF NEW HAMPSHIRE'S CHILDREN:The Failure to Fund Guardians ad Litem for Children Living in Poverty
Volume 53, No. 2
Summer 2012
Esther Kane Dickinson and Gregory L. Silverman
INTRODUCTION
In 2011, the New Hampshire Legislature eliminated funding for what had been known as the guardian ad litem (GAL) Fund. Before then, the GAL Fund had been available to pay for guardians ad litem in domestic relations cases where the parties were indigent and a court determined that their children needed the "best interest" representation of a guardian ad litem.(fn1) The 2011 legislative action did not, however, affect the family court's general ability to appoint guardians ad litem in domestic relations cases. Indeed, RSA 461-A:16 continues to authorize the appointment of guardians ad litem in cases where the court determined one was needed "to represent the interests of the children of the parties." RSA 461-A:16,I. However, after July 1, 2011, the only children who have the beneft of guardian ad litem representation are those whose parents can afford to pay for it.
This funding decision has had signifcant impact on the New Hampshire family court's ability to make informed decisions in parenting rights and responsibilities cases, and has compromised the safety and welfare of children living in poverty. This article presents (a) the historic context of this unprecedented legislative action, (b) how the lack of funding has limited the court's ability to act in the best interests of indigent children,and (c) some policy considerations for reinstituting the availability of best interest representation for low income children.
HISTORIC CONTEXT
The New Hampshire courts' authority to appoint guardians ad litem for children in contested custody cases was codifed in 1979.(fn2) There was no question at the time that the benefcial services of a guardian ad litem in custody cases should apply to all children, no matter their fnancial circumstances.(fn3) Indeed, while members of the 1979 House Judiciary Committee debated how funds for guardians ad litem representing indigent children would be generated,(fn4) none questioned the need. In 1982, specifc language was included in RSA 458-17-a to assure that indigent children would have the beneft of guardians ad litem in their cases.(fn5) This legislative commitment to indigent children in custody cases remained constant in ensuing years as the legislature considered other laws relating to GALs: creating a centralized guardian ad litem fund and increasing fling fees to support it (1987); establishing standards and disciplinary procedures for guardians ad litem (1993); and creating a GAL governance board (1999). During none of these discussions did legislators question that the best interests of poor children were somehow less important than those of more affuent children.(fn6)
The 2011 legislative session saw changes in court administration and fscal responsibility for ancillary services.(fn7) Among other things, the legislature voted to eliminate all funding for guardians ad litem in domestic relations cases, by redacting the second sentence in RSA 461-A:16, IV ("Where theparties are indigent, compensation for guardians ad litem and others utilized by the guardian and approved by the court shall be based upon the applicable fee schedule established by the supreme court for indigent defense counsel") and amending RSA 461-A:17 to read: "The judicial council shall have no responsibility for the payment of the costs of a mediator or guardian ad litem for any party under this chapter." No other provisions were made for guardian ad litem compensation.(fn8) Curiously RSA 461-A: 16, Vwas not amended; thus, the provision that the court may waive the requirements related to the appointment of a guardian ad litem continues to include the caveat that "[g]ood cause shall not include the lack of ability to pay by either party." Therefore, the court's authority to appoint guardians ad litem for poor children remains; however, judicial offcers are effectively barred from using GAL services because they have no ability to compensate them for their work.(fn9) Without the investigatory services previously provided by guardians ad litem, they lack information crucial to protecting the children they are charged to safeguard, finding themselves unable to successfully meet their legal responsibility to protect the interests of indigent children.
JUDICIAL LIMITATIONS ON DETERMINING THE BEST INTERESTS OF LOW INCOME CHILDREN
New Hampshire judges and marital masters have relied on the input of guardians ad litem to help determine what is in the best interests of children since at least the 1979 statutory authorization. The primary role of the guardian ad litem is to be an advocate for the best interests of the child, and to assist the court and the parties in reaching a prompt and fair determination, while minimizing the bitterness in this process.(fn10) They are charged with conducting interviews and inspecting records to produce a report containing their "findings and conclusions or recommendations."(fn11) While the guardian ad litem''?, reports are not binding on the judge or master,(fn12) they do represent "the eyes and the ears of the court," imbued with "broader rights to investigate circumstances without adherence to traditional party boundary lines."(fn13)
In a parenting rights and responsibilities case, the court is required to be guided by the best interest of the child in determining parental rights and responsibilities by utilizing six specific factors and one general factor(fn14) In addition, if the court finds "that a minor child is of sufficient maturity to make a sound judgment, the court may give substantial weight to the preference of the mature minor child as to the determination of parental rights and responsibilities."(fn15) In order for judicial officers to perform their responsibilities under the statute, they must be provided with accurate, relevant, and complete factual bases upon which to make reasonable findings. In many cases, facts are very challenging to determine without the services of a guardian ad litem.
Interviews with sitting marital masters suggest that they feel as though they are sometimes "guessing" about a child's best interest in those cases where a GAL is unaffordable. One master said that he felt "helpless" without "independent fact-finding" to assist him in his conclusions. While it is, of course, the court's responsibility to determine the parties' credibility in any proceeding, it is difficult - impossible some might say - to do so without sufficient information."(fn16) In 2004, 70 percent of the domestic relations cases in the superior court had at least one pro se party.(fn17) Most individuals who are self-represented cannot afford to hire or continue to pay for the services of a lawyer(fn18) and indigent parents often have a limited education and are unfamiliar with legal proceedings.(fn19) Most unrepresented parents cannot perform the advocacy responsibilities that are required to make an accurate and complete presentation of facts in the course of litigation, including investigating facts, interviewing witnesses, preparing and presenting a coherent legal case, and cross-examining witnesses.(fn20) Judicial officers in the Family Division of the Circuit Court want to meet their responsibility to protect and advance the best interest of the children who appear before them, but are hindered by the lack of guardians ad litem, in those cases where children are most at risk.
There may be circumstances where the family courts can obtain essential information from investigative bodies without utilizing the services of a guardian for example in cases with allegations of abuse or neglect such that DCYF might provide useful family information, or where a school guidance counselor voluntarily appears in court to provide insight as to a child's emotional needs. There may be other circumstances where a guardian ad litem is less than necessary...
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