Editorial: Lawyers Not Invited
The Connecticut Supreme Court recently decided in Barros v. Barros that it is not a violation of a parent's due process rights to exclude that parent's lawyer from a court-ordered Family Relations evaluation.
While this result is undoubtedly disappointing to the appellant who wanted his lawyer to attend meetings and interviews with the evaluator, it is certainly not surprising. After all, Family Relations has followed this same protocol for more than 30 years. Moreover, as the Supreme Court noted there are significant procedural safeguards in place to protect the due process rights of such parties. These include the right to prepare with counsel for evaluation meetings in advance and the right to cross-examine the author of the report at trial. Further, as the Court noted, the trial court is not bound to accept a Family Relations report and recommendation.
Nevertheless, a careful examination of our Supreme Court's familiar procedural due process analysis in Barros v. Barros illuminates some important assumptions and institutionalized beliefs regarding the work of our courts and the role of counsel in family relations matters. Particularly noteworthy is the conclusion that "the government's interest in excluding counsel far outweighs the risk of an erroneous deprivation" of a party's private interests. In support of this conclusion, the Court in Barros opined that allowing lawyers to attend such interviews will "infuse the adversarial process into the child custody evaluation."
In this regard, the Court also noted the "potentially adverse effect that counsel's presence may have on the reliability of the custody evaluation." Specifically: "To the extent that counsel's presence could interfere with the evaluator's ability to ascertain the child's best interests by stifling the forthright and candid participation of the parties, the value of allowing counsel to be present may well be negative."
Viewed from the perspective of the historically cherished right to counsel, these observations are certainly remarkable. Yet, in matters of this nature the law actually "neutralizes" each parent's individual rights. Thus, although "the parents commence as presumptive equals…the child's best interests [tip] the scale in favor of an award of custody to one parent or the other." In other words, as a matter of law and public policy because the concern focuses upon the child's interests, the rights and interests of the parents are viewed as secondary for due process purposes.
It is similarly remarkable that the Court in Barros described the government's interest as "paramount," "vital." and "weighty." Therefore, the Court found it "disconcerting" that an attorney during an evaluation interview might advise a client not to answer certain questions. "To the extent that a parent wants counsel present in order to frustrate an evaluator's access to information that may place that parent in a bad light, then it necessarily follows that counsel's presence could very well jeopardize the reliability of the evaluation in determining the child's best interest."
Although this analysis may be problematic to some, it is actually quite correct when viewed from the perspective of the enormous burden that child custody cases impose upon our Family Court judges and Family Relations evaluators. While stepping away from the emphasis upon the normally valuable role of lawyers, the Court has simultaneously stepped toward protecting the arguably more valuable and "vital" services that we demand of Family Relations counselors. By refusing to allow the evaluation process to become more "adversarial," the Court is helping the evaluators perform the task of choosing between two presumably fit parents.
There is arguably no decision more difficult, weighty and gut-wrenching than judging whether a good mother or a good father should have custody of their child. It's a thankless job at best. In case there is any doubt about the propriety of the Court's decision not to impede those dedicated professionals as they proceed with their work, perhaps it's worth reminding the critics that the reward that awaits the custody evaluator is a subpoena to testify in open court on cross- examination in the presence of those two parents.
Instead of assuming that there is a valid reason for suspicion of their motives, we should commend all Family Relations counselors for their dedication to the task of helping our Family Courts make the difficult decisions that the parents themselves could not make.•