In my opinion, perhaps the saddest and often most heart wrenching part of a family law matter is a fight over children. Custody disputes are so personal and important to each side that if the right people aren’t involved they can get downright nasty and last many years. This is especially so when children are young at the time the divorce begins.
Like it or not, once children are involved parties are connected to one another for life. While not always possible, children are best served when parents can put their differences aside and the children’s needs and best interests first. Typically that means being the bigger person, taking a few deep breaths and staying focused on the goal at hand- the children. While this may be easier said than done, parties who cannot agree or who engage in bitter custody battles can spend years in the court system not to mention thousands of dollars on experts, court appointed or otherwise who become involved to help the parties resolve their issues.
There are several experts who can become involved in a litigated custody matter. Forensic psychologists, psychiatrists and/or social workers can either be court appointed or selected independently by a party. Their function can be to provide a medically based opinion of each party and the child(ren) and the interrelationships in the family. Through a series of tests and interviews, the psychologist can offer a medically based, informed opinion as to the best interests of the child(ren). They can also function in a therapeutic setting to repair, re-establish or reunite a parent’s relationship with a child.
Parent coordinators can either be psychologists, attorneys or even licensed social workers. Their function is to serve as a neutral third party to effectuate communication between parents as to child centered issues. Often, parent coordinators refer to themselves as referees as they can offer insight and a perspective from an outside vantage point. Parent coordinators do not have authority to make the final call and either parent can still raise an issue to the court for determination.
An attorney appointed to represent the interests of the child(ren) acts as an independent legal advocate for the best interests of the child(ren) and takes an active part in a hearing.
A guardian ad litem acts as an independent factfinder, investigator and evaluator as to the best interests of the child(ren).
The same person cannot serve as the guardian ad litem for the child(ren) and a court appointed attorney.
Once some or even all of these professionals are involved and a resolution is not reached, the issue of what’s best for the child(ren) is placed before the court for determination. A plenary hearing must be conducted "when the submissions of experts show there is a genuine and substantial factual dispute regarding the welfare of the children, and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute." "In child custody cases, a ‘plenary hearing is virtually a necessity…unless there are overwhelming admitted facts (e.g. child abuse). Such a hearing must be held…where serious and long standing effects on the life and well-being of the child may result.’"
For an in depth discussion of guardian ad litems, court appointed attorneys for the child(ren) and the court’s role in making the decisions, see Bell v. Bell, A-0308-06T3, Decided August 10, 2009.
Through the judicial system parents are given opportunities and tools to resolve these issues between them. However, the best decisions are the ones that parties can agree to amongst themselves as they are the most likely to be followed.