Don’t Just Ask the Kids: Toward a More Deliberate Approach to Child Advocacy

Dale Margolin Cecka

The practice of child advocacy is in complete disarray across the country. A primary reason for this is the misuse of the child’s stated wishes during custody battles. Most states incorporate the child’s perspective through the appointment of attorney guardians ad litem (“GALs”), whose role is to promote the child’s best interests. Other states assign attorneys for the child (“AFCs”), who are limited to advocating the child’s position in court. Both types of child advocates are also expected by courts to serve as investigators, advisors, and/or mediators. However, none of these practices are grounded in outcomes-based empirical evidence. Research shows that damage is done to children when their parents engage in protracted litigation and fail to co-parent civilly over the long term. When courts appoint separate advocates for children, they add unnecessary and ill-equipped parties to the mix. As long as we continue to dissolve families in this country on an adversarial basis, we must abolish all current judicial practices related to child advocacy in custody litigation, including the use of the child’s purported wishes. This Article proposes, instead, two streamlined appointments, both only for use at final trial: a forensic investigator, to provide the court with specific information, and a forensic social worker, to report a child’s actual words. If the judicial system truly cares about reducing strife for children, its players should be on board with this more deliberate approach to child advocacy.