Saturday, December 6, 2008

Indiana Courts and Children and Looking at Australia

What has Australia to do with Indiana? I found Australia's Guidelines for Independent Children's Lawyers which got me thinking about Indiana's statutes on guardian ad litems.

Our family law statute gives little in the way of what I found here:

The Guidelines are intended to provide guidance to the Independent Children’s Lawyer (ICL) in fulfilling his/her role. The Guidelines have also been issued for the purposes of providing practitioners, parties, children and other people in contact with the Family Courts, with information about the Courts’ general expectations of Independent Children's Lawyers.
View the Guidelines for Independent Children's Lawyers issued by National Legal Aid.

Compare this The Role of the ICL on page 2 of the Australian Guidelines which goes on for about one page with this from the Indiana Code:
IC 31-17-6-3 Protection of best interests of child; term of appointment
Sec. 3. A guardian ad litem or court appointed special advocate shall represent and protect the best interests of the child. A guardian ad litem or court appointed special advocate serves until the court enters an order for removal.
As added by P.L.1-1997, SEC.9.

IC 31-17-6-4 Officers of the court
Sec. 4. The guardian ad litem or the court appointed special advocate, or both, are considered officers of the court for the purpose of representing the child's interests.
As added by P.L.1-1997, SEC.9.
For full disclosure, I think I am still smarting from the denial of guardian ad litem (GAL) in a case earlier this year. Opposing counsel argued that there were no grounds given for needing a GAL. Not that the statute requires any grounds:
IC 31-17-6-1 Appointment
Sec. 1. A court, in a proceeding under IC 31-17-2, IC 31-17-4, this chapter, IC 31-17-7, or IC 31-28-5, may appoint a guardian ad litem, a court appointed special advocate, or both, for a child at any time.
As added by P.L.1-1997, SEC.9. Amended by P.L.133-2008, SEC.9.
But that may leaves it strictly to the judge's discretion. Which means if the county does not have the fund with which to pay for a GAL, then no appointment. Regardless of how this affects the children.

I am also getting rankled by an out-of-county case (which is all I can say since it is pending) where the county has a GAL office but the GAL has not met with the child or even returned my calls. My irritation does not cease when I read the following from the Australian guidelines:
6.2 Meeting the Child
It is expected that the ICL will meet the child unless:
• the child is under school age;
• there are exceptional circumstances, for example where there is an ongoing investigation of sexual abuse allegations and in the particular circumstances there is a risk of systems abuse for the child;
• there are significant practical limitations, for example geographic remoteness.
The assessment about whether, where and how to meet the child is a matter for the ICL. An assessment may be made in consultation with any Family Consultant or other expert involved in the case.
I like referring to tools. GAL's are a tool but not a solution for all problems. That they should be available in every contested custody and/or parenting time matter is where I do think they could do a very good service for the case, for the court, and for the children.

Meanwhile, Indiana could do worse than take a look at the Australian manual.

No comments: