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Ethics and Morality
When Does "No Mean No" for Children in Family Court?
Judge Lisa Gorcyca of Michigan and the Ethical Crisis in Family Court
Posted August 17, 2015
The recent jailing of three children for not liking their father is something I’ve written about here and here.
After significant international news coverage and over 10,000 signatories on a petition to have her removed from the bench, Family Court Judge Lisa Gorcyca decided to release the children from juvenile detention. They had been there weeks.
She sentenced them instead to overnight summer camp. It sounds funny, to think of a child sentenced to summer camp. Most children would be delighted to go to camp. Yet this was a decision the Judge made heedless of the three children's actual wishes. They simply wanted to be home with their mother.
But what is a child's wish when it comes to Family Court?
And now they will never be home with their mother, because, as a cynic would have expected all along, the Judge's summer manuevering was really in the effort to transfer custody to the estranged father the children fear. (A son reported a beating as recently as March.)
Because what is a child's wish, or a fifteen year old's wish, when it comes to Family Court?
The practice of Family Court is jaw-droppingly shocking. Read the transcripts (link to them here) from Gorcyca's courtroom to see how she begins and ends by insulting the children. You will need to see it for yourself to believe it.
There is practice and there is theory, however. In the case of Family Court, the theory is not supportive of the things Gorcyca keeps doing.
The theories are good. In this report by Law Professor Donald N. Duquette of the University of Michigan, explains why there is so much consensus on the idea that children do indeed have rights. He and his co-authors explain the various rationales for providing children in custody cases their own attorney.
Children are, that is, entitled to attorneys with the same duties as are owed to adult clients: "undivided loyalty, confidentiality, and comptetent representation."
The arguments include that children as young as seven are to no longer be roped into ideas about their "best interests." By that age, they should be represented by a lawyer who will advocate for their actual expressed interests. The youngest child Gorcyca jailed was nine, too old, according to the theorists, for even her own lawyer to presume to know what is best for her.
Duquette's report also describes qualities necessary to effective representation of a child facing a placement decision.
• Attorneys must develop a bond with their client. Attorneys should be actively engaged with their clients in order to understand their needs and advocate effectively. Attorneys must engage more with children by having frequent and more meaningful contact. Attorneys should understand the child’s living situation, school, and home life.
• Effective representation includes a thorough investigation in order to develop a clear theory of the case and effectively advocate in court. Attorneys must gain a thorough understanding of their cases in order to develop effective strategies and advocate zealously for their clients.
• Attorneys effectively solve problems for their clients by engaging in active out-of-court advocacy. Negotiating solutions and settlements is an important function of the attorney’s role. By actively seeking solutions on behalf of the child, attorneys can resolve problems quickly and cooperatively.
Due to what I suppose are state requirements, the three siblings in this case were indeed appointed lawyers for the hearing that sent them to jail. These lawyers assigned to children being sent to jail had to ask what the children's names were in court. This alone demonstrates the kind of legal ethics being engaged in here, even before you realize these lawyers did not object to their young clients being jailed. They did not argue that being sent to juvenile hall was *not* in the children’s best interests nor did they argue for the preferences of each particular child.
None of the above criteria were even close to being met by the children's court appointed lawyers.
In fact, the lawyer for the nine-year-old addressed the court by saying that her advice was for her client to "apologize for whatever she did." Whatever she did!
This lawyer then admitted she did not know the story and accused the child of not cooperating with her (my own shy children would also find a cruel lawyer terrifying). So the child's attorney offered an argument in court against the child's clear interests.
This is at odds with the theories on why children need their own representation in custody decisions: the nine-year-old's attorney was not "loyal," did not maintain client "confidentiality," and was not competent. Hurting a client is not what representation is.
These lawyers failed these children. They failed to live up to their own professional responsibilities. They must fail countless other children in just the same way.
Of course, what do they care? The pay is the same. The mother is now under a gag order so there will be no more complaining from her. They have taken her voice along with her children.
Can you believe any of this happens in this country?
What has gone so wrong in Family Courts?
I would suggest we consider “family law” and its environs a field in desperate need of the kind of attention other fields have gotten for their poor ethics (resulting in the fields of bioethics and business ethics). May Judge Gorcyca’s jailing of children be the case that begins textbooks on the ethics of family law, prompting students who read of it to marvel that people ever found such behavior acceptable.
