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January 23, 2024 Feature

Guardians ad Litem for Children and/or Parents in Family Law Cases involving Substance Use Disorder

Hon. Karen S. Adam (Ret.)

Substance use disorder (SUD), including alcohol use disorder (AUD), is a complex issue for lawyers and judges in many kinds of cases, including civil, probate, criminal, juvenile, and family. Its effects range from misuse to addiction and can lead to serious individual and family problems at any point. Most of us have been involved in family law cases where SUD destroyed everything in the user’s life: health, housing, career, credit, relationships with family and friends, and position in the community.

Yet we and the litigants live in a culture where alcohol and drugs play major roles as either a social lubricant or the way to manage stress and anxiety. Alcohol is portrayed as necessary for fun and relaxation and as the magic bullet that gets you the most friends and the best toys. The messaging around drug use is that there is a pill for everything, whether the condition has been thoroughly assessed and diagnosed or not. We watch families unravel at best and completely fall apart at worst due to alcohol misuse while all the social signals have suggested that drinking is not a problem. In other cases, we watch families struggle because of prescription drug substance misuse that sometimes escalates to using illegal substances and to addiction.

No wonder family law cases involving SUD are so challenging. They are made more so by access to justice issues that gravely impact civil litigation. In 70–80 percent of family law cases in state courts in the United States, at least one of the parties is self-represented. National Center for State Courts Family Justice Initiative: Landscape of Domestic Relations in State Courts 2018. A self-represented litigant in a case involving SUD may face serious difficulties in either raising or defending SUD allegations. Represented parties may face similar challenges if counsel is unable to present evidence necessary to raise or refute a claim of SUD because of a lack of expertise about SUD or weak factual support for the claim of SUD.

In the family law context, SUD can impair parenting and put children at risk. Or, one parent may use false or exaggerated allegations of SUD against the other. Family law decisions about custody and visitation require findings about what is in the best interest of the child. The physical, emotional, and psychological health of the parents are factors that judges must take into consideration when determining where, with whom, and under what conditions a child will reside. SUD looms large in those considerations. It is critical that the judge, evaluators, and mediators receive accurate information about the SUD so that they can determine whether that SUD has impacted the ability to parent safely and competently.

Procedural Fairness: Ensuring All Voices Are Heard

Guardians ad litem (GAL), best interest attorneys, or child’s attorneys can play a vital role in cases involving SUD. They advise on the child’s wishes or on what is in the child’s best interest (depending on their role). In those cases where one or both parents are self-represented, they are able to present evidence to the court that might otherwise not be come before it. The child’s representative has access to witnesses, documents, records, and reports that can be introduced into evidence. Without that evidence, the court, evaluators, and mediators are limited to considering what is brought forward by the litigants. That evidence may be, at best, an incomplete version of what is happening in the home or, worse, a fabrication designed to deprive the other parent of custody or visitation.

Similarly, when a parent is unable to participate meaningfully in the case due to his or her SUD, a GAL or guardian can help ensure a full and fair hearing that incorporates what is in the parent’s best interest. Even if the parent is represented, appointment of a guardian is important. An attorney is prohibited from substituting his or her judgment for that of the parent’s if a legal position is at odds with what is in the parent’s best interest. The parent with SUD may be reluctant to undertake residential treatment, fearing that their absence will be used against them. If the guardian believed that treatment was in the best interest of the parent, he or she could make that recommendation to the court.

Child’s Representatives

There are generally three types of child representatives: child’s attorney, best interest attorney, and GAL or court-appointed advisor. GALs can be non-lawyers who have special training in child development or a related field. Regulations of the scope and role of the child’s representative vary by state, county, or district and, often, by courtroom. In some states, statutes define the roles; in others, state or local rules of procedure govern. Resources are limited in most courts, and funding for attorneys or other professionals in family law cases is often not prioritized.

I have long advocated for the appointment of a child’s attorney in all family law cases. See my article “Make Room at Counsel Table for the Child’s Attorney” in Family Advocate (Fall 2007), reprinted in the ABA General Practice, Solo and Small Firm Division’s magazine GPSolo “Best of ABA Sections” issue (Sept. 2009). However, if that is not possible, then cases involving domestic abuse, mental health issues, and SUD should be at the top of the list for appointing a child’s representative because the overlay of violence, emotional, or physical abuse and the potential for neglectful parenting to render the child(ren) involved especially vulnerable.

If one or both parents are self-represented, the situation is particularly fraught. Decision-makers connected with the case need to hear from and/or about the children. They should not have to rely solely on the assertions of the parents, who may be unable or unwilling to present accurate information about parenting competency and the safety of the home.

Generally, the GAL and best interest attorney make recommendations to the court about what is in the children’s best interest. The child’s attorney represents the children’s positions on legal issues such as parenting time and residence. In some cases, the appointment of both a child’s attorney and a GAL would be appropriate. For example, the child may take a strongly prefer living with the substance-abusing parent, even though the parent is not yet ready for the responsibility of parenting safely. Ideally, the judge would have information about both what the child wants and what is best for the child.

A child’s representative can identify and engage appropriate services for the child(ren), including therapy and support. There are evidence-based programs, such as Celebrating Families, that are specially designed for the children of parents with SUD. In these programs, children learn about SUD, how SUD has impacted them, and how they can move forward in their own lives. Unless there is extreme neglect or abuse, family law cases are usually resolved with a custody and parenting plan for both parents. The better prepared the children and parents are for moving forward as a family, the greater the chance of success.

Guardian for the Parent

Over the last 20 years, there have been major changes to state statutes and rules of procedure that govern the appointment of a GAL for an adult in a family law case. Generally, it is no longer possible for a one party to simply allege incompetence about the other party and secure the appointment of GAL, who would substitute their judgment for that of the “ward.” This process was utilized often enough that reform was required. Now, most states and locales require that the complete process for obtaining a guardianship be employed before a parent loses the right to act on their own behalf in a family law matter.

Arizona has adopted a hybrid model. Once the issue of the parent’s competence is raised, a GAL may be appointed to determine whether guardianship is appropriate. If the GAL recommends the appointment of a guardian, the family law matter is stayed, and a case is opened in the probate division. Arizona Rules of Family Law Procedure Rule 37.1 Appointment of a Guardian ad Litem.

Once appointed, a guardian makes recommendations about what is in the best interest of the parent regarding family law issues. Those recommendations may be different from what the parent’s attorney (or parent, if self-represented) may be requesting. For example, a parent may seek unsupervised parenting time when the therapeutic recommendation is that the parent’s recovery process may be jeopardized by the added stress of parenting without supervision.

Because family law cases are civil, judges do not generally have the authority or the resources to order treatment and monitoring for SUD. A guardian can facilitate the appropriate assessment, treatment, and monitoring of the ward’s SUD. That oversight can help to move the case forward and to expedite resolution when treatment is complete.

Practice Tips

Take the time to learn about SUD and the impact of SUD on parenting. Research state statutes and rules of procedure regarding the appointment of children’s representatives and adult GALs and guardianship. Attend trainings offered to probate practitioners to learn about guardianship procedures. If there is not a list of attorneys or others qualified to serve as children’s representatives or adult GAL/guardians, work with the bar and the court to create that resource. Volunteer to serve in one of these roles.

Each year on average, 8.7 million children aged 17 or younger are living in U.S. households with at least one parent who had an SUD. Nat’l Ctr. on Substance Abuse and Child Welfare. That statistic highlights the potential breadth of substance use prevention and treatment needs for the whole family. When those families interact with the family court, there are opportunities to identify and address the myriad of parenting issues caused or exacerbated by SUD.

SUD parenting does not always involve maltreatment requiring the intervention of protective services but may nonetheless result in lasting harm to children. Lawyers and others who serve as children’s representatives or adult guardians/GALs can interrupt the cycle of harm, but they must understand the issues and be able to present them to the decision-makers.

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Hon. Karen S. Adam

Superior Court Judge (Ret.)

The Hon. Karen S. Adam, Superior Court Judge (Ret.) retired from the bench in November 2015 after 34 years of service as a Tucson City Court Magistrate, a Superior Court Commissioner, and a Superior Court Judge. She was the presiding judge of Pima County Juvenile Court 2011–14. She has been a drug court judge for criminal and child welfare cases. Judge Adam writes and lectures on juvenile and family law topics and access to justice and has served as faculty for the National Judicial College since 2007.