This past weekend the Pennsylvania Bar’s Family Law Section met in Washington for three days of seminars by day and recovery by night. The list of seminars was impressive. But, the one I randomly chose on children with disabilities was especially thought provoking.
Two of the attorneys lecturing, Jessica Pritchard and Aaron Weems both have kids with life conquential disabilities. Yet, both function as partners in law firms doing family law on a full-time basis. For a moment, pause to consider the whining that is typical in most custody cases where the client calls to say their ex was 30 minutes late or the child hadn’t been properly showered. You, as their counsel, have to process these complaints in a world where you have a child at home who is struggling with lifetime and often life-threatening conditions.
Jessica and Aaron were joined by Dr. Rachel Schwartz and Judge Sabrina Korbel of Allegheny County. Dr. Schwartz and the attorneys were intimately familiar with the “specialized language” of special needs. This is a mulitfaceted world encompassing medical needs; physical needs; emotional support and specialized educational training. And it takes in kids with temporary and transient needs as well as children afflicted with conditions that will persist for their lifetimes. Judge Korbel is new to the judging world but her perspective was helpful because she comes to these issues in much the same way that family lawyers do. Unlike fights over money, fights over children require a special approach because we all know that kids aren’t tall enough to fight at adult levels and they often cower in corners when forced to watch the parents they love duke it out. This is true of all children, but kids afflicted with physical, intellectual and emotional disabilities are all the more vulnerable. As Dr. Schwartz aptly noted; a child with emotional problems is instantly challenged by any schedule that requires frequent changes of residence. Yet, parents and courts often don’t pause to absorb the disruption and angst associated with living in two houses with different residents, facilities and schedules.
The other issue that was striking was that there are two breeds of conflict. The first is the typical crap that custody lawyers deal with every day. That has to do with schedules, medical and dental appointments, “activities” and school curricula. Dr. Schwartz’ point was that kids with disabilities are already struggling with anxieties emanating from their disabilities. Parents unwittingly add a layer to that anxiety by warring over these relatively inconsequential issues. In many instances, the parental anxiety is closely related to the reality that their child has a disability. And, in many cases, a major issue is getting parents to acknowledge either the existence or the depth of the disability the child has.
The seminar subject then turned to the use of guardians ad litem to help provide neutral input. Sadly, lawyers have their own disability in this arena. We are supposed to “zealously” advocate for our client’s legal position. * Yet, in the majority of situations, we don’t fully understand the disability involved beyond our client’s report to us. We don’t travel in the world of diagnosis and treatment and we have no practical training that allows us to weigh the merits of one course of therapy against another. All we really do is read what our clients tell or give us and try to reduce it to some digestible form for people like Judge Korbel to absorb.
Guardians ad litem (GAL) can offer help. Their client is the child’s best interest. Under 23 Pa.C.S. 5334 a guardian ad litem must be an attorney. Unfortunately, in cases where there is a real dispute between parents over treatment, residential or educational placement or the like, legal training is of little practical use. These are potentially life changing physical, mental and educational decisions for the child. And in many instances, the decision is a highly technical one where even experts could reasonabily disagree.
We can’t change the statute. Lawyers will be the GALs for now. But it became clear at the outset of the seminar that the lawyers in charge had been the riverpilots in their own children’s voyage. What did they share in common? They raised children affected with serious diabilities. It was not always smooth sailing. They noted that often parents “missed” resources that could have made a significant difference. Sometimes that was caused by denial of the condition or its severity. But more often, it was because parents had not heard about what resources were available.
I had been a GAL as a young lawyer. It was an intimdating experience at 27 years of age to be “in charge” of helping the court assess the best interests of a then 14 year child who had been molested by, but still cared for, her parent. But as I listened to Saturday’s seminar it occurred to me that (1) we live in a day when more kids seem to be affected by disabilities (2) the methods of treatment are becoming more sophisticated and (3) most lawyers, even experienced ones, are novices in this developing field of conflict. Judge Korbel’s perspective was important. Essentially it boiled down to admission that it’s easy to grasp that the disability is present and any judge “cares” to advance a right result. But, courtrooms are poor venues to decide what educational alternative is best or whether the dangers of corrective surgery outweigh the benefits. Where parents reasonably disagree,Courts need someone neutral to help pilot the ship.
This writer has come to know many fellow lawyers who have raised children with all sorts of disabilities, from minor to life altering. Courts can’t “match” guardians with disabilities but lawyers who have navigated these waters in their own experience would seem to make a better class of guardians when courts need this kind of help. Where part of the conflict is parent-personality based (rather than topic driven), it would also seem to make sense that parents who are assigned a GAL who has been down a similar road with his/her own child would be inclined to listen more attentively to what the guardian recommends. It becomes a more cooperative and less adversarial enterprise.
In sum, almost anyone who has raised a child with a disability is imbued with a special set of skills. Those skills are not taught in law schools nor in the hallways of our courts. Those skills are needed, especially in settings where the dispute over how to raise a disabled child is rooted in “considered” differences over which path is best. It would be a positive step forward in our judicial world if bar associations would poll their members and compile lists of attorneys who have direct experience with raising disabled children and who might be called upon to help the court navigate a course in the direction of best interests. This does not need to be a pro bono engagement. History has taught us that people without financial resources tend to find compromise on their own. But this is a complex world in which children have complex disabilities and courts need guardians to help distill where “best interests” can best be found.
*”As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” Pa. Rules of Professional Conduct.