Representing Minors in Guardianships: Tips and Tricks of the Trade
When I boldly claim, “I love representing kids in guardianship cases, those are my absolute favorites!” other lawyers often shake their heads in disbelief or audibly gasp. For me, nothing is more gratifying, or makes me feel more like a “counselor at law,” than working with a fractured family to help a child find a safe landing.
Guardianships are tough. Most people – including lawyers – think that Probate Court deals exclusively with issues related to aging and death. While it is true that most issues before our probate judges involve disputes over generational wealth or conflicts involving elder abuse or conservatorships, guardianship matters take up a growing percentage of probate court dockets.
In general, if a person who wishes to obtain legal custody of a minor is a non-biological parent, the case begins as a guardianship proceeding in Probate Court. Probate Court was a logical origin for non-parent custody cases because long ago, when the Probate Court was deciding what to do with a deceased person’s assets, it made perfect sense for that same court to determine where an orphaned child should live. As our legal systems evolved, and custody disputes became more complex, involving issues of parental abuse/neglect, or conflict between the parents, Dependency Court and Family Court created more robust resources for tackling custody matters.
Different Courts, Different Services
As a rule of thumb, Family Court trumps Probate Court, and Juvenile Dependency Court (aka Dependency Court) trumps Family Court when it comes to jurisdictional issues in child custody disputes. Probate Court is often the last chance for kids to settle in to a safe and stable home life.
Dependency Court handles custody cases when Child Protective Services has substantiated allegations of child abuse or neglect. In Dependency Court, all parties (parents, children, social service agencies) are represented by attorneys. Moreover, in Dependency Court, services such as counseling, parenting classes, and drug testing are provided to the parties. Dependency Court has the authority to place children with relatives or non-relatives (i.e., foster care, group homes).
Family Court handles cases when parents cannot agree on child custody, parentage, parental visitation, and in limited circumstances, visitation for other relatives.[1] In Family Court, parents may hire counsel and attorneys are sometimes appointed in contentious cases to represent minors to represent the child’s best interest.[2] Family Court often oversees financial support orders, parental custody and visitation orders that contemplate holidays, and of course, divorce proceedings. When a party files a custody or visitation request with the court, the parties are required to attend mediation to help work through practical and legal obstacles that exist in difficult disputes.[3]
Probate Court handles custody cases when a relative or friend is willing to assume legal responsibility for the child when parental custody is problematic, as well as adoption cases. The person seeking guardianship must be able to provide the court with evidence that parental custody would be harmful and that a guardianship would be in the minor’s best interest. Often, guardianship proceedings are filed by pro per litigants who start the process feeling desperate. In every guardianship case, a probate court investigator meets with all parties, conducts extensive background checks, and prepares a detailed report for the judge and parties. Unfortunately, while some probate courts offer mediation for parties, counsel is not appointed for parents, counsel is only sometimes appointed for minors, and no social services or parenting classes are offered. So unlike Family Court and Dependency Court, where there are various services available to the parties, in Probate Court, the insight provided by minor’s counsel and Probate
Court investigators is hugely impactful, putting significant pressure on minor’s counsel.
It is rewarding to serve as minor’s counsel in guardianship matters because you are often the lone voice advocating for the best interests of the child. And even though trying to figure out “best interests” is always challenging and emotionally taxing for minor’s counsel, it is also the most soul satisfying work you can do as an attorney. As minor’s counsel, you can experience, in real time, how your work can make a huge difference in a child’s life. Nothing feels better than being able to a help a child obtain a safe, loving and happy home – either with parents or guardians.
Diving Into the Case – Collaborate with Court Investigators
Representing minors in guardianships is a big responsibility. The court is going to rely heavily on your recommendations. The parents and guardians regale the court with wildly differing takes on what the child wants and what the child needs. It is helpful for minor’s counsel to work collaboratively with the court investigator. As minor’s counsel, use the authority granted in your order of appointment to speak with your client’s therapists, doctors, schools and social contacts. The court investigator has the authority to obtain CFS records, conduct background checks, speak with law enforcement, and interview all parties. This information helps refine your impressions of the parties.
Minor’s counsel should think of court investigators the way that criminal defense attorneys think of private investigators – a secret weapon of sorts. Court investigators are a huge resource for information and advice. It is always a good idea to reach out the investigator assigned to the matter and speak directly so that you can compare notes, ask questions and troubleshoot your concerns as a team. While you may not always agree with the investigator’s recommendations, speaking directly with the investigator can prove very fruitful as you develop your theory of the case. Do not underestimate the value of the input of the investigator. If you and the investigator are flummoxed by a case, you can tag team strategies such as the following.
Bonding with the Minor
Serving as minor’s counsel requires a difficult balancing of interests. When your client is a child, you are often straddling the line between acting as an advocate for what the child claims to want while also acting as a guardian ad litem, acting as an advocate for the child’s best interests. Certainly, the minor’s wishes must be considered, balanced with the minor’s level of maturity. Contrary to popular belief, the minor’s wishes do not suddenly become relevant when the minor reaches a particular age. To fulfil your role as minor’s counsel, you must be able to put yourself in the child’s shoes, even if those shoes are baby booties. While you can’t ask a toddler to articulate a preference, you can – and must – observe the child in competing contexts. Visit the client during time with the guardian,with a parent, or other interested parties who may be a suitable alternative. It is so important to respect the bonds that the child has developed with the various parties, and it can take some very hands-on digging to figure out what the child wants and/or needs. Attorneys often balk at this notion, noting that they are not social workers or therapists. However, we are counselors, and our job as minor’s counsel is to understand all the dynamics at play, and do our best to do right by our clients while also being aware of the lifelong impacts guardianships have on generations within a family unit.
A common challenge for minor’s counsel is developing a bond with the minor, who is often traumatized by the tragedy or conflict that came before the guardianship petition. I find it incredibly helpful to take the minor out of the home where the minor is residing to conduct initial conversations and establish trust. Meeting minors at counsel’s office, in a private area at a restaurant, driving around minor’s neighborhood, or even at the minor’s school often yields great rewards in establishing rapport between minor and minor’s counsel. Of course, privileged communications about the minor’s guardian preference or discussion of allegations of parental abuse or neglect must be conducted in private. However, devoting an hour of time to meeting in a casual or relaxed atmosphere will establish long-term trust and rapport between minor and attorney. I have always had the best luck getting minors to talk when they are in the car with me. Something magical happens when everyone is facing forward, and the car is moving. Kids tend to open up when they don’t have to make eye contact. Be creative when working with children, and trust your gut. If something feels off, or you can’t figure out how best to help the child, don’t give up. You may be the only person in the child’s life who doesn’t have a personal stake in where the child lands. Your service is invaluable.
Minor’s counsel often explain their role to the minor as follows: “I am your court-appointed counsel. Part of my job is to find out from you what it is that you want, and what you think is best. Another part of my job, because you are not yet an adult, is to make up my own mind about what I believe is going to be best for you. It is my duty to tell the judge both things: What you say you want and what I think is best. Then the judge will make a decision.” If the petitioner’s attorney can help a petitioner understand the role of minor’s counsel, it can ease tensions between the parties and take some of the focus off of the minor, who may be subjected to pressure from parents or petitioners to “tell your lawyer” various misleading statements.
Dealing with Pro Pers
Guardianships have become ubiquitous because the social welfare departments are understaffed and underfunded. Consequently, when there are no hospital or police records to support concerns of child abuse or neglect, CFS may encourage family members to petition for guardianship. CFS workers will hand guardianship paperwork to friends and relatives who are willing to take custody of a child who is alleged to be unsafe with their parents. This leads the self-represented potential guardians to believe that because CFS suggested they apply, they will “win” guardianship. This misconception is very frustrating to potential guardians, who learn quickly that the process is lengthy and difficult.
It is important for minor’s counsel to consider how much time, money, and emotional capital that a potential guardian is investing in the child, and it is always a good idea to let the guardian know that you appreciate all that they are doing to try to improve the child’s life. Of course, a positive attitude toward the guardian must be balanced against a widespread, philosophical belief that children belong with their parents. The law tends to be deferential to parents, and for many good reasons. Never forget that removing a child from the custody of even an objectively unstable parent can result in life-long trauma to the child.
If you believe parental custody is detrimental for your client, getting the parent to buy in to your point of view changes the dynamic of the case. It is helpful to explain to the parties that a guardianship is not a termination of parental rights but is merely a custody order that can be modified and can encompass parental visitation orders. Parents and prospective guardians alike have many misconceptions about what guardianship entails, but most laypeople understand custody orders, and are familiar with divorce custody disputes. When an attorney is able to contextualize a guardianship as a custody order focused on the child’s best interests, it is much easier for the parties to understand and accept a guardianship as a reasonable solution to family problems. If a practitioner can make it clear to parties that guardianship custody orders may be modified in the way that divorce custody orders can be modified, it can mean the difference between a parent vigorously objecting to or gracefully accepting a proposed guardianship.
Happy Endings? Ish.
Guardianships are complex, heartbreaking, and heart-expanding cases. You witness the best and worst of human nature when representing minors in guardianships. I have been representing children in this context for over 15 years, so I have connected with some former clients who are now adults. I have had cases where I agonized over the recommendations that I made to the court, and worried I somehow contributed to family disharmony or chaos in my client’s life. However, every time I have had the pleasure of checking in with those clients whose cases kept me up at night, they have confirmed that they ended up exactly where they were supposed to be. Moreover, a surprising number of families that I encountered during their most stressful times go on to recover and enjoy healthy, meaningful connections. Time and forgiveness lead to grace, and bearing witness to a child’s development leaves me feeling overpaid for the services I provide. Join us on the Contra Costa County Conflicts Guardianship Panel and make a difference in a child’s life.
[1] California Family Code section 3100 et. seq.
[2] Minor’s Counsel in family law cases are appointed pursuant to California Family Code section 3150, and their rights and responsibilities vary somewhat from those appointed in juvenile dependency and guardianship cases.
[3] California Family Code section 3170(a)