The New Hampshire Supreme Court has found that court-appointed guardians adequately protect the interests of minors in divorce proceedings, denying a request by two children to be represented by their own counsel.

The children of Richard and Cheryl Stapleford have no statutory or due process right to intervene as parties in their parents' divorce case, the court's opinion said in an endorsement of the “guardian ad litem” (GAL) system used to represent minors' interests.

“If children were allowed to intervene, they could participate in discovery, depose and cross-examine witnesses, and appeal the court’s ruling,” Justice Gary E. Hicks wrote. “Should siblings disagree among themselves, they could each hire their own attorney to advocate for their individual preferences.”

“We need not further detail the chaos that would ensue if we were to hold that every mature minor has a due process right to intervene in their parents’ divorce litigation,” he added.

But Hicks completely ignored what a Colorado Supreme Court justice has called the “problems inherent” in the legal relationship between a guardian ad litem and a child.

The relationship “is not the same as between an attorney and an adult client,” Justice George E. Lohr said, dissenting in In re the Marriage of Hartley, 886 P.2d 665 (1995). “In certain circumstances, this 'difference' may militate in favor of having independent legal representation for a child.”

The Stapleford children moved to intervene after their guardian ad litem recommended, against their wishes, that they live primarily with their mother in Milford, N.H. Richard Stapleford had hired an attorney on their behalf, but the guardian argued that intervention would unduly empower them.

The trial court judge denied the motion and the Supreme Court affirmed, finding “the children’s interests are well protected by the existing process” and that

the adversarial nature of a divorce proceeding provides an effective check and balance system. A parent who opposes the GAL’s recommendation will likely expose any mistakes made by the GAL, through cross-examination or otherwise.

Justice Hicks cited the similar ruling of the Maine Supreme Judicial Court in Miller v. Miller, 667 A.2d 64 (1996). The majority in Hartley also denied an intervention request.

But Hicks's concerns about “chaos” are overstated. Courts, after all, could still have the discretion to allow intervention only in particular cases where it was clearly warranted.

“Even though the GAL may be careful to advise the court of the child's contrary opinion, the risk is high that the strength and earnestness of that opinion, and the factual basis for it, will be diluted or obscured by the GAL's own opinion and recommendation,” Justice Lohr wrote in Hartley.

“To ensure that the child's own independent perspective, untainted by the opinions of others, is presented to the court,” he said, “the retention of independent legal counsel in a particular case may assist the trial court to determine what that child's best interests truly are with respect to custody, visitation, and support.”

By Matthew Heller
On Point