The roles and content of best interests in client-directed lawyering for children in child protective proceedings

Fordham Law Review

Volumn 64, Issue 4, 1996, Pages 1505-1570

  Peters, Jean Koh ^a,b,c,d  

^a YALE UNIVERSITY   (United States)

^b Leg Aid Soc Juven Rights Division   (United States)

^c Columbia Law School ^*

^d Immigration Legal Services

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0030537998     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (207)

1. 387 U.S. 1 (1967).
2. Chapter One of Representing Children in Child Protective Proceedings: Ethical and Practical Dimensions offers historical background concerning the history of child protection and parental rights. It concludes that, despite federal and national initiatives designed to preserve families, the current child welfare system is disturbingly continuous with what scholars have described as a dual system of family law, protecting parental rights of rich parents and discounting parental prerogative of poor parents, which originated in Elizabethan England. Chapter Two offers a capsule history of lawyering for children in the United States. It concludes that the prevalent "guardian ad litem" role of lawyers for children originated in property disputes involving orphaned wealthy British children and has no logical place in contemporary child welfare proceedings. Jean Koh Peters, Representing Children in Child Protective Proceedings: Ethical and Practical Dimensions (forthcoming from the Michie Company) [hereinafter Representing Children].
3. Chapter Three of Representing Children reviews the substantive law of the 50 states, the District of Columbia, and the U.S. Territories regarding the role of lawyers for children in child welfare proceedings. Although lawyers for children or guardians ad litem are required in all jurisdictions, the role of any given lawyer in any given state, city, county, or courthouse varies wildly, with few areas of consensus or consistent practice. Id.
4. Chapter Four of Representing Children examines the ethical provisions regarding representation of children. Concluding that lawyers for children are ethically required to design a representation that closely resembles traditional lawyer-adult client representation, the chapter offers three default postures for the child's attorney and seven principles for keeping the attorney true to the ethical requirements. Id.
5. Model Rules of Professional Conduct Rule 1.14 (1983) [hereinafter Model Rules].
6. Id. Rule 1.2(a).
7. Kate Federle warns in her paper for this Conference that giving lawyers discretion to determine client competence invites manipulation when lawyer and client disagree. Katherine Hunt Federle, The Ethics of Empowerment: Rethinking the Role of Lawyers in Interviewing and Counseling the Child Client, 64 Fordham L. Rev. 1655, 1661, 1676-77, 1681; see also infra note 34 (discussing results when lawyer and client disagree).
8. Martha Matthews notes a tension in the Model Rules between a view of competence as an incremental concept and competence as an all-or-nothing concept. On the one hand, the Comment to Model Rule 1.14 notes that the "law recognizes intermediate degrees of competence." Model Rules, supra note 5, Rule 1.14 cmt. On the other hand, Model Rule 1.14(b) authorizes protective action which may remove entirely the client's ability to direct the representation. Matthews notes that the Model Rules drafters acknowledge, but do not resolve, this tension. Martha Matthews, Ten Thousand Tiny Clients: The Ethical Duty of Representation in Children's Class-Action Cases, 64 Fordham L. Rev. 1435, 1439-40 (1996). The all-or-nothing view is expressed in Geoffrey C. Hazard & W. William Hodes, The Law of Lawyering § 1.14:101, at 439 (2d ed. 1990 & Supp. 1993): "At some point, however, the ability of a disabled client to communicate or to take action is so limited that assigning that person the role of "client" is a mere formality - as where a lawyer has been assigned to represent a newborn infant."
9. Martha Matthews notes a tension in the Model Rules between a view of competence as an incremental concept and competence as an all-or-nothing concept. On the one hand, the Comment to Model Rule 1.14 notes that the "law recognizes intermediate degrees of competence." Model Rules, supra note 5, Rule 1.14 cmt. On the other hand, Model Rule 1.14(b) authorizes protective action which may remove entirely the client's ability to direct the representation. Matthews notes that the Model Rules drafters acknowledge, but do not resolve, this tension. Martha Matthews, Ten Thousand Tiny Clients: The Ethical Duty of Representation in Children's Class-Action Cases, 64 Fordham L. Rev. 1435, 1439-40 (1996). The all-or-nothing view is expressed in Geoffrey C. Hazard & W. William Hodes, The Law of Lawyering § 1.14:101, at 439 (2d ed. 1990 & Supp. 1993): "At some point, however, the ability of a disabled client to communicate or to take action is so limited that assigning that person the role of "client" is a mere formality - as where a lawyer has been assigned to represent a newborn infant."
10. For general background on the traditional role of the guardian ad litem, see Brian G. Fraser, Independent Representation for the Abused and Neglected Child: The Guardian Ad Litem, 13 Cal. W. L. Rev. 16, 25-35 (1977).
11. Peter Margulies in his article for this Conference, notes that because "even infants are taking in information, and giving it out, at a spectacular rate," attorneys for very young children should not forego meeting their clients. Peter Margulies, The Lawyer as Caregiver: Child Client's Competence in Context, 64 Fordham L. Rev. 1473, 1484 n.38 (1996).
12. In this regard, I agree with the Council of the Family Law Section of the ABA, which states in its proposed Standards of Practice that client disability is not globally determined, but rather is "contextual, incremental, and may be intermittent," and that "[t]herefore, a child may be able to determine some positions in [a] case but not others." Proposed American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, 29 Fam. L.Q. 375, § B-3 cmt. (1995) [hereinafter ABA Proposed Standards]. For a discussion of competence as a contingent construct that varies with the decisions the client confronts and with the way the client is treated by lawyers and other professionals, see Margulies, supra note 10, at 1477, 1485. See also Emily Buss, "You're My What?": The Problem of Children's Misperceptions of Their Lawyers' Roles, 64 Fordham L. Rev. 1699, 1739-41 (1996) (arguing that even a traditional guardian ad litem need not under Model Rule 1.14, conclude that "the entire normal client-lawyer relationship" is not possible, but must preserve the normal relationship as much as possible). Buss points out that even under Model Rule 1.14 "client capacity for decision making and for being informed are quite different." Id. at 1749-50. This is one example of the need for contingent and intermediate determinations of client capacity, rather than a single global determination to govern the entire relationship.
13. In this regard, I agree with the Council of the Family Law Section of the ABA, which states in its proposed Standards of Practice that client disability is not globally determined, but rather is "contextual, incremental, and may be intermittent," and that "[t]herefore, a child may be able to determine some positions in [a] case but not others." Proposed American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, 29 Fam. L.Q. 375, § B-3 cmt. (1995) [hereinafter ABA Proposed Standards]. For a discussion of competence as a contingent construct that varies with the decisions the client confronts and with the way the client is treated by lawyers and other professionals, see Margulies, supra note 10, at 1477, 1485. See also Emily Buss, "You're My What?": The Problem of Children's Misperceptions of Their Lawyers' Roles, 64 Fordham L. Rev. 1699, 1739-41 (1996) (arguing that even a traditional guardian ad litem need not under Model Rule 1.14, conclude that "the entire normal client-lawyer relationship" is not possible, but must preserve the normal relationship as much as possible). Buss points out that even under Model Rule 1.14 "client capacity for decision making and for being informed are quite different." Id. at 1749-50. This is one example of the need for contingent and intermediate determinations of client capacity, rather than a single global determination to govern the entire relationship.
14. In this regard, I agree with the Council of the Family Law Section of the ABA, which states in its proposed Standards of Practice that client disability is not globally determined, but rather is "contextual, incremental, and may be intermittent," and that "[t]herefore, a child may be able to determine some positions in [a] case but not others." Proposed American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, 29 Fam. L.Q. 375, § B-3 cmt. (1995) [hereinafter ABA Proposed Standards]. For a discussion of competence as a contingent construct that varies with the decisions the client confronts and with the way the client is treated by lawyers and other professionals, see Margulies, supra note 10, at 1477, 1485. See also Emily Buss, "You're My What?": The Problem of Children's Misperceptions of Their Lawyers' Roles, 64 Fordham L. Rev. 1699, 1739-41 (1996) (arguing that even a traditional guardian ad litem need not under Model Rule 1.14, conclude that "the entire normal client-lawyer relationship" is not possible, but must preserve the normal relationship as much as possible). Buss points out that even under Model Rule 1.14 "client capacity for decision making and for being informed are quite different." Id. at 1749-50. This is one example of the need for contingent and intermediate determinations of client capacity, rather than a single global determination to govern the entire relationship.
15. In this regard, I agree with the Council of the Family Law Section of the ABA, which states in its proposed Standards of Practice that client disability is not globally determined, but rather is "contextual, incremental, and may be intermittent," and that "[t]herefore, a child may be able to determine some positions in [a] case but not others." Proposed American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, 29 Fam. L.Q. 375, § B-3 cmt. (1995) [hereinafter ABA Proposed Standards]. For a discussion of competence as a contingent construct that varies with the decisions the client confronts and with the way the client is treated by lawyers and other professionals, see Margulies, supra note 10, at 1477, 1485. See also Emily Buss, "You're My What?": The Problem of Children's Misperceptions of Their Lawyers' Roles, 64 Fordham L. Rev. 1699, 1739-41 (1996) (arguing that even a traditional guardian ad litem need not under Model Rule 1.14, conclude that "the entire normal client-lawyer relationship" is not possible, but must preserve the normal relationship as much as possible). Buss points out that even under Model Rule 1.14 "client capacity for decision making and for being informed are quite different." Id. at 1749-50. This is one example of the need for contingent and intermediate determinations of client capacity, rather than a single global determination to govern the entire relationship.
16. It is fair to say that I was led, kicking and screaming, to this rather uncomfortable conclusion. As a practitioner, I found the responsibility of taking positions on huge issues in my client's life to be awesome and humbling. As a teacher and supervisor, I found the level of discretion entrusted to lawyers for children to be frighteningly huge. When undertaking the project of writing this book, I originally believed that I could enunciate a view of lawyering that would eliminate the discretion to determine and contend with a child's best interests altogether. I am therefore deeply sympathetic with and fascinated by Martin Guggenheim's work, including the article included with this Conference, which seeks principled elimination of lawyerly discretion in representing children. Martin Guggenheim, A Paradigm for Determining the Role of Counsel for Children, 64 Fordham L. Rev. 1399 (1996). The chapters contained herein demonstrate my conclusion, based upon my practice and my research, that while this discretion, and the awesome responsibility it entails, cannot be eliminated, it can nevertheless be reduced to acceptable levels and exercised in a principled manner.
17. Presented in part I infra.
18. Presented in part II infra.
19. Chapter Seven of Representing Children discusses the roles of interdisciplinary consultation and learning. Chapter Eight, which concludes Part One, outlines the nuts and bolts of representing verbal and non-verbal clients, offering a practical roadmap through the representations of various kinds of clients.
20. Part Two of Representing Children describes in depth a rubric for the relationship of the adult attorney with the child client, addressing issues of interviewing, counseling, and beginning and ending the professional relationship.
21. Part Three of Representing Children examines selected issues in pursuing the representation, including lawyering at interdisciplinary meetings, and calling the child client to the stand as a witness. Id.
22. Donald Duquette notes that best interests remains the most common standard for dispositional orders despite widespread dissatisfaction with the standard's subjectivity. Donald N. Duquette, Child Protection Legal Process: Comparing the United States and Great Britain, 54 U. Pitt. L. Rev. 239, 279 (1992). For examples from just two states, see Conn. Gen. Stat. § 46b-129(e)(3) (1995) (requiring court to make best interest determination for extension of child's commitment to state custody); id. § 51-165(d) (1985 & Supp. 1995) (requiring that all judges assigned to Superior Court Juvenile Matters have a full understanding of the best interests of the child standard); Conn. R. Super. Ct. Juv. § 1023.1(f)(2) (West 1995) (defining "dispositive hearing" as a proceeding in which the court "orders whatever action is in the best interests of the child and the community"); N.Y. Fam. Ct. Act § 614(1)(e) (McKinney 1983) (requiring neglect petitions to allege that best interests of child requires commitment to state care); id. § 1052(b)(i)(A) (McKinney 1983 & Supp. 1996) (requiring court in neglect cases to state grounds for all dispositions in terms of child's best interest); id. § 1055(b)(iv)(B)(1-3) (setting out three factors court shall consider in determining whether extension of commitment is in child's best interests).
23. Donald Duquette notes that best interests remains the most common standard for dispositional orders despite widespread dissatisfaction with the standard's subjectivity. Donald N. Duquette, Child Protection Legal Process: Comparing the United States and Great Britain, 54 U. Pitt. L. Rev. 239, 279 (1992). For examples from just two states, see Conn. Gen. Stat. § 46b-129(e)(3) (1995) (requiring court to make best interest determination for extension of child's commitment to state custody); id. § 51-165(d) (1985 & Supp. 1995) (requiring that all judges assigned to Superior Court Juvenile Matters have a full understanding of the best interests of the child standard); Conn. R. Super. Ct. Juv. § 1023.1(f)(2) (West 1995) (defining "dispositive hearing" as a proceeding in which the court "orders whatever action is in the best interests of the child and the community"); N.Y. Fam. Ct. Act § 614(1)(e) (McKinney 1983) (requiring neglect petitions to allege that best interests of child requires commitment to state care); id. § 1052(b)(i)(A) (McKinney 1983 & Supp. 1996) (requiring court in neglect cases to state grounds for all dispositions in terms of child's best interest); id. § 1055(b)(iv)(B)(1-3) (setting out three factors court shall consider in determining whether extension of commitment is in child's best interests).
24. Donald Duquette notes that best interests remains the most common standard for dispositional orders despite widespread dissatisfaction with the standard's subjectivity. Donald N. Duquette, Child Protection Legal Process: Comparing the United States and Great Britain, 54 U. Pitt. L. Rev. 239, 279 (1992). For examples from just two states, see Conn. Gen. Stat. § 46b-129(e)(3) (1995) (requiring court to make best interest determination for extension of child's commitment to state custody); id. § 51-165(d) (1985 & Supp. 1995) (requiring that all judges assigned to Superior Court Juvenile Matters have a full understanding of the best interests of the child standard); Conn. R. Super. Ct. Juv. § 1023.1(f)(2) (West 1995) (defining "dispositive hearing" as a proceeding in which the court "orders whatever action is in the best interests of the child and the community"); N.Y. Fam. Ct. Act § 614(1)(e) (McKinney 1983) (requiring neglect petitions to allege that best interests of child requires commitment to state care); id. § 1052(b)(i)(A) (McKinney 1983 & Supp. 1996) (requiring court in neglect cases to state grounds for all dispositions in terms of child's best interest); id. § 1055(b)(iv)(B)(1-3) (setting out three factors court shall consider in determining whether extension of commitment is in child's best interests).
25. Donald Duquette notes that best interests remains the most common standard for dispositional orders despite widespread dissatisfaction with the standard's subjectivity. Donald N. Duquette, Child Protection Legal Process: Comparing the United States and Great Britain, 54 U. Pitt. L. Rev. 239, 279 (1992). For examples from just two states, see Conn. Gen. Stat. § 46b-129(e)(3) (1995) (requiring court to make best interest determination for extension of child's commitment to state custody); id. § 51-165(d) (1985 & Supp. 1995) (requiring that all judges assigned to Superior Court Juvenile Matters have a full understanding of the best interests of the child standard); Conn. R. Super. Ct. Juv. § 1023.1(f)(2) (West 1995) (defining "dispositive hearing" as a proceeding in which the court "orders whatever action is in the best interests of the child and the community"); N.Y. Fam. Ct. Act § 614(1)(e) (McKinney 1983) (requiring neglect petitions to allege that best interests of child requires commitment to state care); id. § 1052(b)(i)(A) (McKinney 1983 & Supp. 1996) (requiring court in neglect cases to state grounds for all dispositions in terms of child's best interest); id. § 1055(b)(iv)(B)(1-3) (setting out three factors court shall consider in determining whether extension of commitment is in child's best interests).
26. Donald Duquette notes that best interests remains the most common standard for dispositional orders despite widespread dissatisfaction with the standard's subjectivity. Donald N. Duquette, Child Protection Legal Process: Comparing the United States and Great Britain, 54 U. Pitt. L. Rev. 239, 279 (1992). For examples from just two states, see Conn. Gen. Stat. § 46b-129(e)(3) (1995) (requiring court to make best interest determination for extension of child's commitment to state custody); id. § 51-165(d) (1985 & Supp. 1995) (requiring that all judges assigned to Superior Court Juvenile Matters have a full understanding of the best interests of the child standard); Conn. R. Super. Ct. Juv. § 1023.1(f)(2) (West 1995) (defining "dispositive hearing" as a proceeding in which the court "orders whatever action is in the best interests of the child and the community"); N.Y. Fam. Ct. Act § 614(1)(e) (McKinney 1983) (requiring neglect petitions to allege that best interests of child requires commitment to state care); id. § 1052(b)(i)(A) (McKinney 1983 & Supp. 1996) (requiring court in neglect cases to state grounds for all dispositions in terms of child's best interest); id. § 1055(b)(iv)(B)(1-3) (setting out three factors court shall consider in determining whether extension of commitment is in child's best interests).
27. Donald Duquette notes that best interests remains the most common standard for dispositional orders despite widespread dissatisfaction with the standard's subjectivity. Donald N. Duquette, Child Protection Legal Process: Comparing the United States and Great Britain, 54 U. Pitt. L. Rev. 239, 279 (1992). For examples from just two states, see Conn. Gen. Stat. § 46b-129(e)(3) (1995) (requiring court to make best interest determination for extension of child's commitment to state custody); id. § 51-165(d) (1985 & Supp. 1995) (requiring that all judges assigned to Superior Court Juvenile Matters have a full understanding of the best interests of the child standard); Conn. R. Super. Ct. Juv. § 1023.1(f)(2) (West 1995) (defining "dispositive hearing" as a proceeding in which the court "orders whatever action is in the best interests of the child and the community"); N.Y. Fam. Ct. Act § 614(1)(e) (McKinney 1983) (requiring neglect petitions to allege that best interests of child requires commitment to state care); id. § 1052(b)(i)(A) (McKinney 1983 & Supp. 1996) (requiring court in neglect cases to state grounds for all dispositions in terms of child's best interest); id. § 1055(b)(iv)(B)(1-3) (setting out three factors court shall consider in determining whether extension of commitment is in child's best interests).
28. Generally the standard in those proceedings is imminent harm to the child if there is no removal. Many courts may believe that a finding of imminent danger requires a general assessment of the interests of the child at the time.
29. Certainly the child's attorney should feel comfortable holding the state to its burden demonstrate parental unfitness before further state intervention into the family's life. Likewise, at an emergency removal hearing, an attorney opposing removal should certainly require the state to demonstrate imminent harm to the child and prevent premature court deliberations on the issue of the child's best interests.
30. Of course, like any attorney, the child's attorney is bound not to make frivolous claims. Model Rules, supra note 5, Rule 3.1. Thus, if there is no argument that a child's desire is in the child's best interest, the lawyer should theoretically be unable to make that argument. In practical application, however, the duty of zealous advocacy requires that a lawyer define the term "frivolous claims" very narrowly. Only claims which are clearly untenable under the controlling law, or which reflect a wish of "harassing or maliciously injuring a person," should be deemed frivolous. Id. Rule 3.1 cmt. Such a narrow definition of frivolous claims prevents lawyers from arbitrarily vetoing their client's wishes. Guggenheim, supra note 12, at 1419 n.68.
31. As Representing Children will address in Part Two, The Lawyer-Child Client Relationship, a lawyer who believes he is making a very marginal or "likely to fail" claim, should certainly counsel her client about the tenuousness of the argument and encourage the client to consider more constructive positions. Peters, Representing Children, supra note 2. Nevertheless, if after thorough counseling, the client persists in wanting a marginally possible objective, and the lawyer can make a good faith claim for that, Rule 3.1 should not prevent her from putting forth that claim.
32. Bruce Boyer points out that the prevalence of the best interests standard imposes a similar obligation on parents' lawyers to translate their clients' objective into terms of best interests of the child. Bruce Boyer, Ethical Issues in the Representation of Parents in Child Welfare Cases, 64 Fordham L. Rev. 1621, 1626-27 (1996).
33. See, e.g., Code of Ethics of The National Association of Social Workers § II.G.1 (1994) (advising a social worker acting on behalf of a client adjudged legally incompetent to "safeguard the interests and rights of that client"); see also Code of Ethics of The National Federation of Societies for Clinical Social Work § II.e (1988) (advising a clinical social worker acting on behalf of a client, "always [to] safeguard the interests and concerns of that client").
34. The interdisciplinary meeting, which will be explained in Part Three of Representing Children, is often a useful forum for this clarification. See Peters, Representing Children, supra note 2.
35. See infra notes 63-128 and accompanying text (discussing and critiquing the works of Goldstein, Freud, and Solnit).
36. See infra notes 129-46 and accompanying text (discussing the Family Network Model).
37. For a discussion of how to seek to resolve such conflicts among lawyers and consulting social workers serving the same clients, see Jean Koh Peters, Concrete Strategies for Managing Ethically-based Conflicts Between Children's Lawyers and Consulting Social Workers Who Serve the Same Client, 1-Mar. KY. Children's Rts. J. 15 (1991).
38. These meetings and the dynamics thereof are discussed in more depth in Part Three of Representing Children. Peters, Representing Children, supra note 2.
39. Peters, Representing Children, supra note 2.
40. Indeed Part Two of Representing Children discusses ways to approach the first interview to make the client as comfortable with the lawyer and the lawyer's role as possible. Id.
41. Note that the comment to Model Rule 1.4 suggests that, in some circumstances, all lawyers may be justified in "delaying transmission of information when the client would be likely to react imprudently to an immediate communication." Model Rules, supra note 5, Rule 1.4 cmt. The rule itself requires that "[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information." Id. Rule 1.4(a). The comment offers as an example that "a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client." Id. Rule 1.4 cmt. Under no circumstances, however, may a lawyer "withhold information to serve the lawyer's own interest or convenience." Id.
42. Keep in mind that "as comfortable as possible" may not in the end be very comfortable. As Part Two of Representing Children explores, because many legal issues pose deeply unpleasant issues for the client, a lawyer should understand that children will often dread meetings with their lawyers. It is critical that lawyers not distort their roles by attempting to overcompensate, through gifts, food, and fun activities, for the pain that their clients are undergoing. Peters, Representing Children, supra note 2.
43. Model Rules, supra note 5, Rule 2.1.
44. Id. Rule 2.1 cmt.
45. A thoughtful debate about the appropriate role of lawyer recommendations in client counseling generally can be found in the writings of Stephen Ellmann, Robert Dinerstein, Peter Margulies, and others. See Robert D. Dinerstein, Client-Centered Counseling: Reappraisal and Refinement, 32 Ariz. L. Rev. 501, 570 (1990) (arguing that Ellmann's presumption in favor of lawyer advice should be reversed in order to counteract rampant lawyer paternalism); Stephen Ellmann, Lawyers and Clients, 34 UCLA L. Rev. 717, 746, 761, 767 (1987) (arguing that lawyers owe their clients the full benefit of the lawyer's experience and that a lawyer's determination to protect client autonomy by not giving advice actually stifles the client's freedom to decide for herself whether she wants her lawyer's opinion); Stephen Ellmann, The Ethic of Care as an Ethic For Lawyers, 81 Geo. L.J. 2665, 2707-12 (1993) (arguing that an application of Carol Gilligan's concept of an ethic of care to legal practice would result in lawyers being even more forthcoming with moral and ethical advice than Model Rule 2.1 initially suggests); Peter Margulies, "Who Are You to Tell Me That?": Attorney-Client Deliberations Regarding Nonlegal Issues and the Interests of Nonclients, 68 N.C. L. Rev. 213, 214, 240 (1990) (arguing that the lawyer's obligations to her clients and to society as a whole require the lawyer to give advice regarding the moral, psychological and policy consequences of the client's decisions and in some circumstances to withdraw from representation if the client ignores the lawyer's advice) [hereinafter "Who Are You to Tell Me That?"]. These writers react to their reading of the perspectives on interviewing and counselling legal clients found in David A. Binder & Susan C. Price, Legal Interviewing and Counseling: A Client-Centered Approach (1977) and David A. Binder et al., Lawyers as Counselors: A Client-Centered Approach (1991). Binder and Price's 1977 book called on lawyers to encourage clients to make their own decisions, and set out only a few circumstances in which lawyers should offer advice or respond to requests for advice. Binder & Price, supra, at 166, 196-203. Binder, Bergman, and Price, in their 1990 book, took a more expansive view of lawyer advice while still placing their focus on client autonomy. Binder et al., supra, at xxii, 279. While specific prescriptions vary among the authors taking part in the debate, all agree that the lawyer must be careful to preserve client autonomy while giving the client the benefit of useful counseling.
46. A thoughtful debate about the appropriate role of lawyer recommendations in client counseling generally can be found in the writings of Stephen Ellmann, Robert Dinerstein, Peter Margulies, and others. See Robert D. Dinerstein, Client-Centered Counseling: Reappraisal and Refinement, 32 Ariz. L. Rev. 501, 570 (1990) (arguing that Ellmann's presumption in favor of lawyer advice should be reversed in order to counteract rampant lawyer paternalism); Stephen Ellmann, Lawyers and Clients, 34 UCLA L. Rev. 717, 746, 761, 767 (1987) (arguing that lawyers owe their clients the full benefit of the lawyer's experience and that a lawyer's determination to protect client autonomy by not giving advice actually stifles the client's freedom to decide for herself whether she wants her lawyer's opinion); Stephen Ellmann, The Ethic of Care as an Ethic For Lawyers, 81 Geo. L.J. 2665, 2707-12 (1993) (arguing that an application of Carol Gilligan's concept of an ethic of care to legal practice would result in lawyers being even more forthcoming with moral and ethical advice than Model Rule 2.1 initially suggests); Peter Margulies, "Who Are You to Tell Me That?": Attorney-Client Deliberations Regarding Nonlegal Issues and the Interests of Nonclients, 68 N.C. L. Rev. 213, 214, 240 (1990) (arguing that the lawyer's obligations to her clients and to society as a whole require the lawyer to give advice regarding the moral, psychological and policy consequences of the client's decisions and in some circumstances to withdraw from representation if the client ignores the lawyer's advice) [hereinafter "Who Are You to Tell Me That?"]. These writers react to their reading of the perspectives on interviewing and counselling legal clients found in David A. Binder & Susan C. Price, Legal Interviewing and Counseling: A Client-Centered Approach (1977) and David A. Binder et al., Lawyers as Counselors: A Client-Centered Approach (1991). Binder and Price's 1977 book called on lawyers to encourage clients to make their own decisions, and set out only a few circumstances in which lawyers should offer advice or respond to requests for advice. Binder & Price, supra, at 166, 196-203. Binder, Bergman, and Price, in their 1990 book, took a more expansive view of lawyer advice while still placing their focus on client autonomy. Binder et al., supra, at xxii, 279. While specific prescriptions vary among the authors taking part in the debate, all agree that the lawyer must be careful to preserve client autonomy while giving the client the benefit of useful counseling.
47. A thoughtful debate about the appropriate role of lawyer recommendations in client counseling generally can be found in the writings of Stephen Ellmann, Robert Dinerstein, Peter Margulies, and others. See Robert D. Dinerstein, Client-Centered Counseling: Reappraisal and Refinement, 32 Ariz. L. Rev. 501, 570 (1990) (arguing that Ellmann's presumption in favor of lawyer advice should be reversed in order to counteract rampant lawyer paternalism); Stephen Ellmann, Lawyers and Clients, 34 UCLA L. Rev. 717, 746, 761, 767 (1987) (arguing that lawyers owe their clients the full benefit of the lawyer's experience and that a lawyer's determination to protect client autonomy by not giving advice actually stifles the client's freedom to decide for herself whether she wants her lawyer's opinion); Stephen Ellmann, The Ethic of Care as an Ethic For Lawyers, 81 Geo. L.J. 2665, 2707-12 (1993) (arguing that an application of Carol Gilligan's concept of an ethic of care to legal practice would result in lawyers being even more forthcoming with moral and ethical advice than Model Rule 2.1 initially suggests); Peter Margulies, "Who Are You to Tell Me That?": Attorney-Client Deliberations Regarding Nonlegal Issues and the Interests of Nonclients, 68 N.C. L. Rev. 213, 214, 240 (1990) (arguing that the lawyer's obligations to her clients and to society as a whole require the lawyer to give advice regarding the moral, psychological and policy consequences of the client's decisions and in some circumstances to withdraw from representation if the client ignores the lawyer's advice) [hereinafter "Who Are You to Tell Me That?"]. These writers react to their reading of the perspectives on interviewing and counselling legal clients found in David A. Binder & Susan C. Price, Legal Interviewing and Counseling: A Client-Centered Approach (1977) and David A. Binder et al., Lawyers as Counselors: A Client-Centered Approach (1991). Binder and Price's 1977 book called on lawyers to encourage clients to make their own decisions, and set out only a few circumstances in which lawyers should offer advice or respond to requests for advice. Binder & Price, supra, at 166, 196-203. Binder, Bergman, and Price, in their 1990 book, took a more expansive view of lawyer advice while still placing their focus on client autonomy. Binder et al., supra, at xxii, 279. While specific prescriptions vary among the authors taking part in the debate, all agree that the lawyer must be careful to preserve client autonomy while giving the client the benefit of useful counseling.
48. A thoughtful debate about the appropriate role of lawyer recommendations in client counseling generally can be found in the writings of Stephen Ellmann, Robert Dinerstein, Peter Margulies, and others. See Robert D. Dinerstein, Client-Centered Counseling: Reappraisal and Refinement, 32 Ariz. L. Rev. 501, 570 (1990) (arguing that Ellmann's presumption in favor of lawyer advice should be reversed in order to counteract rampant lawyer paternalism); Stephen Ellmann, Lawyers and Clients, 34 UCLA L. Rev. 717, 746, 761, 767 (1987) (arguing that lawyers owe their clients the full benefit of the lawyer's experience and that a lawyer's determination to protect client autonomy by not giving advice actually stifles the client's freedom to decide for herself whether she wants her lawyer's opinion); Stephen Ellmann, The Ethic of Care as an Ethic For Lawyers, 81 Geo. L.J. 2665, 2707-12 (1993) (arguing that an application of Carol Gilligan's concept of an ethic of care to legal practice would result in lawyers being even more forthcoming with moral and ethical advice than Model Rule 2.1 initially suggests); Peter Margulies, "Who Are You to Tell Me That?": Attorney-Client Deliberations Regarding Nonlegal Issues and the Interests of Nonclients, 68 N.C. L. Rev. 213, 214, 240 (1990) (arguing that the lawyer's obligations to her clients and to society as a whole require the lawyer to give advice regarding the moral, psychological and policy consequences of the client's decisions and in some circumstances to withdraw from representation if the client ignores the lawyer's advice) [hereinafter "Who Are You to Tell Me That?"]. These writers react to their reading of the perspectives on interviewing and counselling legal clients found in David A. Binder & Susan C. Price, Legal Interviewing and Counseling: A Client-Centered Approach (1977) and David A. Binder et al., Lawyers as Counselors: A Client-Centered Approach (1991). Binder and Price's 1977 book called on lawyers to encourage clients to make their own decisions, and set out only a few circumstances in which lawyers should offer advice or respond to requests for advice. Binder & Price, supra, at 166, 196-203. Binder, Bergman, and Price, in their 1990 book, took a more expansive view of lawyer advice while still placing their focus on client autonomy. Binder et al., supra, at xxii, 279. While specific prescriptions vary among the authors taking part in the debate, all agree that the lawyer must be careful to preserve client autonomy while giving the client the benefit of useful counseling.
49. A thoughtful debate about the appropriate role of lawyer recommendations in client counseling generally can be found in the writings of Stephen Ellmann, Robert Dinerstein, Peter Margulies, and others. See Robert D. Dinerstein, Client-Centered Counseling: Reappraisal and Refinement, 32 Ariz. L. Rev. 501, 570 (1990) (arguing that Ellmann's presumption in favor of lawyer advice should be reversed in order to counteract rampant lawyer paternalism); Stephen Ellmann, Lawyers and Clients, 34 UCLA L. Rev. 717, 746, 761, 767 (1987) (arguing that lawyers owe their clients the full benefit of the lawyer's experience and that a lawyer's determination to protect client autonomy by not giving advice actually stifles the client's freedom to decide for herself whether she wants her lawyer's opinion); Stephen Ellmann, The Ethic of Care as an Ethic For Lawyers, 81 Geo. L.J. 2665, 2707-12 (1993) (arguing that an application of Carol Gilligan's concept of an ethic of care to legal practice would result in lawyers being even more forthcoming with moral and ethical advice than Model Rule 2.1 initially suggests); Peter Margulies, "Who Are You to Tell Me That?": Attorney-Client Deliberations Regarding Nonlegal Issues and the Interests of Nonclients, 68 N.C. L. Rev. 213, 214, 240 (1990) (arguing that the lawyer's obligations to her clients and to society as a whole require the lawyer to give advice regarding the moral, psychological and policy consequences of the client's decisions and in some circumstances to withdraw from representation if the client ignores the lawyer's advice) [hereinafter "Who Are You to Tell Me That?"]. These writers react to their reading of the perspectives on interviewing and counselling legal clients found in David A. Binder & Susan C. Price, Legal Interviewing and Counseling: A Client-Centered Approach (1977) and David A. Binder et al., Lawyers as Counselors: A Client-Centered Approach (1991). Binder and Price's 1977 book called on lawyers to encourage clients to make their own decisions, and set out only a few circumstances in which lawyers should offer advice or respond to requests for advice. Binder & Price, supra, at 166, 196-203. Binder, Bergman, and Price, in their 1990 book, took a more expansive view of lawyer advice while still placing their focus on client autonomy. Binder et al., supra, at xxii, 279. While specific prescriptions vary among the authors taking part in the debate, all agree that the lawyer must be careful to preserve client autonomy while giving the client the benefit of useful counseling.
50. A thoughtful debate about the appropriate role of lawyer recommendations in client counseling generally can be found in the writings of Stephen Ellmann, Robert Dinerstein, Peter Margulies, and others. See Robert D. Dinerstein, Client-Centered Counseling: Reappraisal and Refinement, 32 Ariz. L. Rev. 501, 570 (1990) (arguing that Ellmann's presumption in favor of lawyer advice should be reversed in order to counteract rampant lawyer paternalism); Stephen Ellmann, Lawyers and Clients, 34 UCLA L. Rev. 717, 746, 761, 767 (1987) (arguing that lawyers owe their clients the full benefit of the lawyer's experience and that a lawyer's determination to protect client autonomy by not giving advice actually stifles the client's freedom to decide for herself whether she wants her lawyer's opinion); Stephen Ellmann, The Ethic of Care as an Ethic For Lawyers, 81 Geo. L.J. 2665, 2707-12 (1993) (arguing that an application of Carol Gilligan's concept of an ethic of care to legal practice would result in lawyers being even more forthcoming with moral and ethical advice than Model Rule 2.1 initially suggests); Peter Margulies, "Who Are You to Tell Me That?": Attorney-Client Deliberations Regarding Nonlegal Issues and the Interests of Nonclients, 68 N.C. L. Rev. 213, 214, 240 (1990) (arguing that the lawyer's obligations to her clients and to society as a whole require the lawyer to give advice regarding the moral, psychological and policy consequences of the client's decisions and in some circumstances to withdraw from representation if the client ignores the lawyer's advice) [hereinafter "Who Are You to Tell Me That?"]. These writers react to their reading of the perspectives on interviewing and counselling legal clients found in David A. Binder & Susan C. Price, Legal Interviewing and Counseling: A Client-Centered Approach (1977) and David A. Binder et al., Lawyers as Counselors: A Client-Centered Approach (1991). Binder and Price's 1977 book called on lawyers to encourage clients to make their own decisions, and set out only a few circumstances in which lawyers should offer advice or respond to requests for advice. Binder & Price, supra, at 166, 196-203. Binder, Bergman, and Price, in their 1990 book, took a more expansive view of lawyer advice while still placing their focus on client autonomy. Binder et al., supra, at xxii, 279. While specific prescriptions vary among the authors taking part in the debate, all agree that the lawyer must be careful to preserve client autonomy while giving the client the benefit of useful counseling.
51. Emily Buss addresses the importance of clearly communicating to a child client about the nature of representation so that the child knows whether the attorney is representing the child's wishes or the child's best interests. Buss, supra note 11, at 1720-21. Communication about the lawyer's role is an essential element of the lawyer's obligations under Model Rule 1.14. Because little in a child's experience will cause her to expect that an adult will listen to and advocate her views, it is essential that the child's lawyer communicate fully about the nature of the representation. Id. at 1723-24. The Council of the Family Law Section of the ABA recognized this obligation by including in its proposed standards the lawyer's duty to "remain aware of the power dynamics inherent in adult-child relationships" when expressing the lawyer's assessment of the case. Proposed ABA Standards, supra note 11, § B-4 cmt.
52. Stephen Ellmann, in discussing client-centered counseling, has pointed out the danger that even a lawyer who has no desire to manipulate her client may still seek to mold the client's thinking in service of what the lawyer sees as the client's interests, or some broader social interest. Ellmann, Lawyers and Clients, supra note 36, at 727. Peter Margulies, while asserting that lawyers should counsel their clients about the morality, psychological impact, and unintended consequences of their goals, distinguishes influencing clients from manipulating them. Margulies, "Who Are You to Tell Me That?," supra note 36, at 247-49. Manipulation, according to Margulies, is usually an attempt to achieve the lawyer's goals in the guise of the client's best interests. Id. at 249.
53. Stephen Ellmann, in discussing client-centered counseling, has pointed out the danger that even a lawyer who has no desire to manipulate her client may still seek to mold the client's thinking in service of what the lawyer sees as the client's interests, or some broader social interest. Ellmann, Lawyers and Clients, supra note 36, at 727. Peter Margulies, while asserting that lawyers should counsel their clients about the morality, psychological impact, and unintended consequences of their goals, distinguishes influencing clients from manipulating them. Margulies, "Who Are You to Tell Me That?," supra note 36, at 247-49. Manipulation, according to Margulies, is usually an attempt to achieve the lawyer's goals in the guise of the client's best interests. Id. at 249.
54. Stephen Ellmann, in discussing client-centered counseling, has pointed out the danger that even a lawyer who has no desire to manipulate her client may still seek to mold the client's thinking in service of what the lawyer sees as the client's interests, or some broader social interest. Ellmann, Lawyers and Clients, supra note 36, at 727. Peter Margulies, while asserting that lawyers should counsel their clients about the morality, psychological impact, and unintended consequences of their goals, distinguishes influencing clients from manipulating them. Margulies, "Who Are You to Tell Me That?," supra note 36, at 247-49. Manipulation, according to Margulies, is usually an attempt to achieve the lawyer's goals in the guise of the client's best interests. Id. at 249.
55. I agree with Martha Matthews that "[t]he child's lawyer has an ethical duty to avoid using her superior skills and social position to silence the child's voice, or coerce the child into passive compliance with the lawyer's views." Matthews, supra note 8, at 1458.
56. The danger of hearing only what you want to hear from your client may be particularly strong during initial interviews when you are trying to determine the facts of your client's case. While it is inevitable and useful that the lawyer will have one or more working hypotheses in mind at this stage, it is all too easy unconsciously to structure an interview so that it elicits only facts which confirm the hypothesis without ever getting to the truth of the case as the child sees it. See John Rich, Interviewing Children and Adolescents 6-9 (1968) (citing Jean Piaget, The Child's Conception of the World 8 (1929), on the difficulty adult researchers have in not imposing their own preconceived ideas upon children with whom they are working). Part Two of Representing Children will offer the child's attorney's techniques for confronting her subjective desires for the child so that her client counselling can focus on the client's, not the lawyer's concerns. Peters, Representing Children, supra note 2.
57. The danger of hearing only what you want to hear from your client may be particularly strong during initial interviews when you are trying to determine the facts of your client's case. While it is inevitable and useful that the lawyer will have one or more working hypotheses in mind at this stage, it is all too easy unconsciously to structure an interview so that it elicits only facts which confirm the hypothesis without ever getting to the truth of the case as the child sees it. See John Rich, Interviewing Children and Adolescents 6-9 (1968) (citing Jean Piaget, The Child's Conception of the World 8 (1929), on the difficulty adult researchers have in not imposing their own preconceived ideas upon children with whom they are working). Part Two of Representing Children will offer the child's attorney's techniques for confronting her subjective desires for the child so that her client counselling can focus on the client's, not the lawyer's concerns. Peters, Representing Children, supra note 2.
58. The fact that normal ethical analysis does not apply to a particular representation should be a clear warning sign that the lawyer is out of his professional depth. Christopher Wu's discussion of conflicts of interest notes that a lawyer who gets to set the goals of litigation may never be able to declare a conflict of interest. Christopher N. Wu, Conflicts of Interest in the Representation of Children in Dependency Cases, 64 Fordham L. Rev. 1857, 1861 (1996). Wu warns lawyers against taking any comfort in this; on the contrary it should "be seen as a strong signal that the attorney is engaged in some function other than the practice of law." Id. at 1860.
59. The fact that normal ethical analysis does not apply to a particular representation should be a clear warning sign that the lawyer is out of his professional depth. Christopher Wu's discussion of conflicts of interest notes that a lawyer who gets to set the goals of litigation may never be able to declare a conflict of interest. Christopher N. Wu, Conflicts of Interest in the Representation of Children in Dependency Cases, 64 Fordham L. Rev. 1857, 1861 (1996). Wu warns lawyers against taking any comfort in this; on the contrary it should "be seen as a strong signal that the attorney is engaged in some function other than the practice of law." Id. at 1860.
60. The conflicts created by this type of representation are analogous to those facing the lawyer for a corporate entity. Under Model Rule 1.13, such a lawyer may have an obligation to inform the entity's officers that the lawyer does not represent them, but rather the best interests of the corporation. Model Rules, supra note 5, Rule 1.13(d). Emily Buss, in her article for this Conference has applied this analysis to the situation of a lawyer who decides to represent a child's best interests. Buss, supra note 11, at 1735-36. Extending the analogy offered by Hazard & Hodes, supra note 8, § 1.14:102, Buss notes that in an entity representation, communication is complicated by the fact that the lawyer must seek information from the entity's human officers while not misleading them about where the lawyer's duties of confidentiality and advocacy lie. Buss, supra note 11, at 1735-37. When the entity is a child's best interests, the situation is even more complicated, because children are more easily mislead about the lawyer's role than are sophisticated adult corporate officers. Id.
61. Fall Ferguson, Applying Developmental Principles Within the Lawyer's Role: A Central Dilemma for Lawyers for Children (May 1994) (unpublished manuscript) (on file with author). Ferguson distinguishes best interests representation from Rule 1.14(b) protective action by pointing out that nothing in Rule 1.14(b) or the Comment mandates that protective action be permanent or comprehensive. Rather, she urges that protective action should be designed to address specific incapacities at specific moments of the representation. Id. at 28-29.
62. Fall Ferguson, Applying Developmental Principles Within the Lawyer's Role: A Central Dilemma for Lawyers for Children (May 1994) (unpublished manuscript) (on file with author). Ferguson distinguishes best interests representation from Rule 1.14(b) protective action by pointing out that nothing in Rule 1.14(b) or the Comment mandates that protective action be permanent or comprehensive. Rather, she urges that protective action should be designed to address specific incapacities at specific moments of the representation. Id. at 28-29.
63. Part II, infra, describes four models of determining best interests and proposes a model integrating the four approaches in child placement decisions.
64. Linda Long cites a conversation with a lawyer friend who said: "I'm so glad that I'm a guardian ad litem in this case. For once I don't have to think and act like a lawyer." Linda L. Long, When the Client Is a Child: Dilemmas in the Lawyer's Role, 21 J. Fam. L. 607, 621 n.44 (1982-83); see also Wu, supra note 41, at 1861 (discussing the problems that occur when lawyers do not consult their clients when determining the objectives of the representation).
65. For instance, a study commissioned by the U.S. Department of Health and Human Services and completed in 1993 concluded that a majority of the states direct lawyers for children and guardians ad litem to "represent the best interests of the child," with "no further guidance." The study concluded that, "for these States, the decision of how to represent the child's interests or "best" interests appears to be left to the discretion of the GAL or, perhaps, the courts." U.S. Department of Health and Human Services, Administration for Children and Families, Administration on Children, Youth and Families, National Center on Child Abuse and Neglect, Washington, D.C., Final Report on the Validation and Effectiveness Study of Legal Representation through Guardian Ad Litem (1993). Copies of this Report can be obtained from the National Clearinghouse on Child Abuse and Neglect Information, P.O. Box 1182, Washington, D.C. 20013-1182 or by calling 1-800-FYI-3366.
66. Christopher Wu notes that children subject to child protective proceedings are already surrounded by people who must determine and achieve the child's best interests. What the child's lawyer should bring to the table is not a duplication of this function, but the loyalty and advocacy that are the essence of the lawyer's professional identity. Wu, supra note 41, at 1871-72.
67. See Guggenheim, supra note 12, at 1415 ("Similar cases will be decided differently merely because of chance assignment of a lawyer.")
68. Examining judicial decision making, Robert Mnookin points out that the best interest standard, being essentially indeterminate, poses an "obviously greater risk of violating the fundamental precept that like cases should be decided alike." Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, Law & Contemp. Probs., Summer 1975, at 226, 263.
69. "In the real world, judges rely on the advocacy of a child's lawyer." Guggenheim, supra note 12, at 1430 n.102 (referencing Patricia S. Curley and Gregg Herman, Representing the Best Interests of Children: The Wisconsin Experience, J. Am. Acad. Matrimonial Law. 9 (1995)).
70. This is one of the initial steps recommended by the Council of the Family Law Section of the ABA in Standard C-2(6) of their proposed Standards of Practice. Proposed ABA Standards, supra note 11, § C-2 cmt.
71. Of course, in some cases, these professionals may have participated in the bringing of the child protective action by reporting the family to the state department of child welfare. As one can imagine, these professionals are often experiencing a dramatic crisis in their relationships with the client and his family at the precise moment at which the lawyer is entering the case. In these circumstances, caution in associating oneself too closely with these professionals when initially meeting the client is essential. This need not prevent the lawyer from talking to these professionals (as one would interview anyone who initially reported the family to the state), but does suggest that the attorney keep some distance from them in early encounters with the family until the attorney determines the client's connection and level of trust with these professionals.
72. For a discussion of the complex interaction among the lawyer's obligation of confidentiality and the obligations prescribed by the ethical codes of social workers, psychiatrists, and other professionals, see Gerard F. Glynn, Multidisciplinary Representation of Children: Conflicts Over Disclosures of Client Communications, 27 J. Marshall L. Rev. 617 (1994). Glynn notes that mandatory child abuse reporting laws have been interpreted to supersede the treating professional's obligations of confidentiality to the client. Id. at 639-43. I recognize that the caution I recommend may create a dilemma for lawyers who practice in jurisdictions where the privileges are abrogated in judicial proceedings. See, e.g., N.Y. Fam. Ct. Act § 1046(a)(vii) (McKinney Supp. 1996) (limiting the state's statutory physician-patient, psychiatrist-client, social worker-client, and rape counselor-client privilege in child protective proceedings).
73. For a discussion of the complex interaction among the lawyer's obligation of confidentiality and the obligations prescribed by the ethical codes of social workers, psychiatrists, and other professionals, see Gerard F. Glynn, Multidisciplinary Representation of Children: Conflicts Over Disclosures of Client Communications, 27 J. Marshall L. Rev. 617 (1994). Glynn notes that mandatory child abuse reporting laws have been interpreted to supersede the treating professional's obligations of confidentiality to the client. Id. at 639-43. I recognize that the caution I recommend may create a dilemma for lawyers who practice in jurisdictions where the privileges are abrogated in judicial proceedings. See, e.g., N.Y. Fam. Ct. Act § 1046(a)(vii) (McKinney Supp. 1996) (limiting the state's statutory physician-patient, psychiatrist-client, social worker-client, and rape counselor-client privilege in child protective proceedings).
74. Peter Margulies cautions children's lawyers to respect the "quasi-property" interest that a child may have in information entrusted to a treating professional. Margulies, supra note 10, at 1494.
75. This will sometimes put the lawyer in a veritable Catch-22. For instance, in one case, a client's therapist protested to me that I should have discussed the case with him before I met with my client. According to my duties to my client, however, I felt that I needed a release from her (and a sense about how she felt about the therapist) before I spoke to the therapist. One solution, where a client has a long-term therapeutic relationship, is for the lawyer to have a "preliminary," non-substantive conversation with a client's therapist, informing the therapist simply that the lawyer has been appointed and that the lawyer will be making an appointment to see the child client in the near future. This solution would allow the therapist to talk to his client about the court case and the imminent appearance of the lawyer and thereby prepare the client for the first meeting with the lawyer. This may not be a foolproof solution, however; if the lawyer later ascertains that the client dislikes the therapist, the lawyer may wish that she had contacted the client completely separately from the therapist. Still, if this therapist is a long-term player in the child's life, the lawyer's initial actions should acknowledge the therapist as an important and ongoing resource for the child. Like many "micro" choices that lawyers need to make in setting up meetings with their clients, this decision must be made based upon the lawyer's best judgment based upon the (probably sketchy) information available to him at the time. I would tend to give heavy weight to the length of the therapeutic relationship, the client's degree of mental illness or emotional disability, and the recommendations of others who know the client as to whether or not to contact the therapist before meeting the client.
76. This was the model of representation used, for instance, by the Columbia University School of Law Child Advocacy Clinic.
77. In some states, these retained experts may be paid by the court. See, e.g., N.Y. County Law § 722-c (McKinney 1991) (allowing court to authorize counsel to obtain expert services at the court's expense). In other cases, where legal aid organizations, public defenders, or even groups of private practitioners contract for a group of cases yearly at a negotiated fee, the payment for social work and other professional services may be included in the total fee. Despite these opportunities, it is painfully clear that the vast majority of lawyers representing children do not have ample access to professional services that would help them represent their clients more
78. Part II of Representing Children will provide more on this initial phase of the attorney-client relationship. Peters, Representing Children, supra note 2. Whenever possible, it is much preferable for the attorney, rather than the consultant, to have the primary relationship with the client, for both financial and ethical reasons. In a rare case, where special expertise is critical to maintaining the lawyer-client relationship, a lawyer may decide that the consultant alone has direct contact with the client.
79. When and how to work with a nonlawyer consultant on the same case will be discussed further in Chapter Seven of Representing Children. Id.
80. Indeed, if more states come to accept lawyers for children as advocates for their expressed wishes after counseling rather than guardians ad litem with the same duty to determine best interests as the court has, judges may come to rely upon these experts even more.
81. Similarly, a child's attorney may be required to lobby against the appointment of an expert, if the attorney has reason to believe that no expert will recommend the client's objective in the case.
82. Remarks of Albert J. Solnit at class session of the Advocacy for Parents and Children Clinical Seminar at the Yale Law School (March 20, 1995) (on file with the author).
83. In Chapter One of Representing Children, Goldstein, Freud, and Solnit are discussed as follows: Also influential nationally was a trilogy of books written by the distinguished interdisciplinary collaboration of Joseph Goldstein, Albert J. Solnit, and Anna Freud. Goldstein is a Yale Law Professor and a graduate in Career Research from the Western New England Institute for Psychoanalysis. Freud, who died in 1982, was the Director of the Hampstead Child-Therapy Clinic and the prolific author of works on psychoanalysis and child development. Solnit, a child psychiatrist, wrote the books when he was the Director of the Yale Child Study Center and a Yale Medical School professor of Pediatrics and Psychiatry. Sonja Goldstein, who formally joined the collaboration in the third book, is a lawyer and lecturer at the Yale Child Study Center and Law School. The first book, Beyond the Best Interests of the Child, published in 1973, laid out guidelines for child placement laws, premised upon the child developmental principles of continuity, a child's sense of time, and the limits of law and prediction. The book recommended that judges apply the "best interests of the child" standard placing the child permanently with his psychological parent. The second book, Before the Best Interests of the Child, published in 1979, focused on grounds for state intervention into families in the first instance, laying out concrete standards which are designed to limit state intervention to a minimum. In In the Best Interests of the Child, published in 1986, the trio, joined by Sonja Goldstein, focus on the roles of professionals in the child placement process, arguing that professionals should generally stay within the boundaries of their own professional competence, crossing those boundaries only in rare, carefully thought through circumstances. The influence of these books was immediate and profound. "[E]very subsequent proposal for reform of the child welfare system has drawn its vocabulary and central ideas from Goldstein, Freud and Solnit's conceptual framework." Nadine Taub, Assessing the Impact of Goldstein, Freud and Solnit's Proposals: An Introductory Overview, 12 N.Y.U. Rev. L. & Soc. Change 485, 485 (1983-84). By 1983, one commentator, Brooklyn law professor Marsha Garrison, reported that the trio's "central conclusions about the needs of children in long-term foster care have gained remarkably widespread acceptance." Marsha Garrison, Why Terminate Parental Rights?, 35 Stan. L. Rev. 423, 449 (1982-83) (footnote omitted). Garrison noted that the trio's premises "strongly influenced recent state foster care legislation and several model acts dealing with termination of parental rights for children in long term foster care," id. at 449-50 (footnotes omitted), as well as social work handbooks and works of national planning commissions. Walking through the halls of juvenile and family courts around the country, one can hear terms coined or popularized by the authors, especially psychological parenting, permanency planning, continuity, and the child's sense of time, bandied about during routine bargaining on individual cases. At a symposium convened at Rutgers Law School in 1983 to assess the impact of the trio's first two books, one commentator wrote that "the authors have had an impact on the law governing child welfare decisions that would exceed any academician's wildest expectations." Taub, supra, at 485. Another author, surveying judicial and academic reactions to the first book in 1979, wrote that Beyond the Best Interests of the Child "became what any author would most fervently desire his or her book to become: that which everyone must mention or risk being seen as an ignorant provincial." Richard E. Crouch, An Essay on the Critical and Judicial Reception of Beyond the Best Interests of the Child, 13 Fam. L.Q. 49, 50 (1979). In 1987, the Harvard Law Review published an analysis by New York University law professor and former New York Family Court Judge Peggy C. Davis of 193 judicial opinions published between 1963 and 1984 that cited either the works of the trio or the 1963 unsigned Yale Law Journal Note, Alternatives to 'Parental Right' in Child Custody Disputes Involving Third Parties, 73 Yale L.J. 151 (1963), which previewed some of their ideas. Peggy C. Davis, "There is a Book Out. . . ": An Analysis of Judicial Absorption of Legislative Facts, 100 Harv. L. Rev. 1539 (1987). As Chapter Six, II.C.2 explains in more depth, critics have lodged cogent, trenchant complaints about the trio's work. In addition, it appears that their ideas have been widely misunderstood or caricatured, inasmuch as some advocates cling to their insistence on minimum state intervention and label them as "pro-biological family" while others focus on their valuing of the psychological parent as "anti-biological family." As a historical phenomenon,
84. In Chapter One of Representing Children, Goldstein, Freud, and Solnit are discussed as follows: Also influential nationally was a trilogy of books written by the distinguished interdisciplinary collaboration of Joseph Goldstein, Albert J. Solnit, and Anna Freud. Goldstein is a Yale Law Professor and a graduate in Career Research from the Western New England Institute for Psychoanalysis. Freud, who died in 1982, was the Director of the Hampstead Child-Therapy Clinic and the prolific author of works on psychoanalysis and child development. Solnit, a child psychiatrist, wrote the books when he was the Director of the Yale Child Study Center and a Yale Medical School professor of Pediatrics and Psychiatry. Sonja Goldstein, who formally joined the collaboration in the third book, is a lawyer and lecturer at the Yale Child Study Center and Law School. The first book, Beyond the Best Interests of the Child, published in 1973, laid out guidelines for child placement laws, premised upon the child developmental principles of continuity, a child's sense of time, and the limits of law and prediction. The book recommended that judges apply the "best interests of the child" standard placing the child permanently with his psychological parent. The second book, Before the Best Interests of the Child, published in 1979, focused on grounds for state intervention into families in the first instance, laying out concrete standards which are designed to limit state intervention to a minimum. In In the Best Interests of the Child, published in 1986, the trio, joined by Sonja Goldstein, focus on the roles of professionals in the child placement process, arguing that professionals should generally stay within the boundaries of their own professional competence, crossing those boundaries only in rare, carefully thought through circumstances. The influence of these books was immediate and profound. "[E]very subsequent proposal for reform of the child welfare system has drawn its vocabulary and central ideas from Goldstein, Freud and Solnit's conceptual framework." Nadine Taub, Assessing the Impact of Goldstein, Freud and Solnit's Proposals: An Introductory Overview, 12 N.Y.U. Rev. L. & Soc. Change 485, 485 (1983-84). By 1983, one commentator, Brooklyn law professor Marsha Garrison, reported that the trio's "central conclusions about the needs of children in long-term foster care have gained remarkably widespread acceptance." Marsha Garrison, Why Terminate Parental Rights?, 35 Stan. L. Rev. 423, 449 (1982-83) (footnote omitted). Garrison noted that the trio's premises "strongly influenced recent state foster care legislation and several model acts dealing with termination of parental rights for children in long term foster care," id. at 449-50 (footnotes omitted), as well as social work handbooks and works of national planning commissions. Walking through the halls of juvenile and family courts around the country, one can hear terms coined or popularized by the authors, especially psychological parenting, permanency planning, continuity, and the child's sense of time, bandied about during routine bargaining on individual cases. At a symposium convened at Rutgers Law School in 1983 to assess the impact of the trio's first two books, one commentator wrote that "the authors have had an impact on the law governing child welfare decisions that would exceed any academician's wildest expectations." Taub, supra, at 485. Another author, surveying judicial and academic reactions to the first book in 1979, wrote that Beyond the Best Interests of the Child "became what any author would most fervently desire his or her book to become: that which everyone must mention or risk being seen as an ignorant provincial." Richard E. Crouch, An Essay on the Critical and Judicial Reception of Beyond the Best Interests of the Child, 13 Fam. L.Q. 49, 50 (1979). In 1987, the Harvard Law Review published an analysis by New York University law professor and former New York Family Court Judge Peggy C. Davis of 193 judicial opinions published between 1963 and 1984 that cited either the works of the trio or the 1963 unsigned Yale Law Journal Note, Alternatives to 'Parental Right' in Child Custody Disputes Involving Third Parties, 73 Yale L.J. 151 (1963), which previewed some of their ideas. Peggy C. Davis, "There is a Book Out. . . ": An Analysis of Judicial Absorption of Legislative Facts, 100 Harv. L. Rev. 1539 (1987). As Chapter Six, II.C.2 explains in more depth, critics have lodged cogent, trenchant complaints about the trio's work. In addition, it appears that their ideas have been widely misunderstood or caricatured, inasmuch as some advocates cling to their insistence on minimum state intervention and label them as "pro-biological family" while others focus on their valuing of the psychological parent as "anti-biological family." As a historical phenomenon,
85. In Chapter One of Representing Children, Goldstein, Freud, and Solnit are discussed as follows: Also influential nationally was a trilogy of books written by the distinguished interdisciplinary collaboration of Joseph Goldstein, Albert J. Solnit, and Anna Freud. Goldstein is a Yale Law Professor and a graduate in Career Research from the Western New England Institute for Psychoanalysis. Freud, who died in 1982, was the Director of the Hampstead Child-Therapy Clinic and the prolific author of works on psychoanalysis and child development. Solnit, a child psychiatrist, wrote the books when he was the Director of the Yale Child Study Center and a Yale Medical School professor of Pediatrics and Psychiatry. Sonja Goldstein, who formally joined the collaboration in the third book, is a lawyer and lecturer at the Yale Child Study Center and Law School. The first book, Beyond the Best Interests of the Child, published in 1973, laid out guidelines for child placement laws, premised upon the child developmental principles of continuity, a child's sense of time, and the limits of law and prediction. The book recommended that judges apply the "best interests of the child" standard placing the child permanently with his psychological parent. The second book, Before the Best Interests of the Child, published in 1979, focused on grounds for state intervention into families in the first instance, laying out concrete standards which are designed to limit state intervention to a minimum. In In the Best Interests of the Child, published in 1986, the trio, joined by Sonja Goldstein, focus on the roles of professionals in the child placement process, arguing that professionals should generally stay within the boundaries of their own professional competence, crossing those boundaries only in rare, carefully thought through circumstances. The influence of these books was immediate and profound. "[E]very subsequent proposal for reform of the child welfare system has drawn its vocabulary and central ideas from Goldstein, Freud and Solnit's conceptual framework." Nadine Taub, Assessing the Impact of Goldstein, Freud and Solnit's Proposals: An Introductory Overview, 12 N.Y.U. Rev. L. & Soc. Change 485, 485 (1983-84). By 1983, one commentator, Brooklyn law professor Marsha Garrison, reported that the trio's "central conclusions about the needs of children in long-term foster care have gained remarkably widespread acceptance." Marsha Garrison, Why Terminate Parental Rights?, 35 Stan. L. Rev. 423, 449 (1982-83) (footnote omitted). Garrison noted that the trio's premises "strongly influenced recent state foster care legislation and several model acts dealing with termination of parental rights for children in long term foster care," id. at 449-50 (footnotes omitted), as well as social work handbooks and works of national planning commissions. Walking through the halls of juvenile and family courts around the country, one can hear terms coined or popularized by the authors, especially psychological parenting, permanency planning, continuity, and the child's sense of time, bandied about during routine bargaining on individual cases. At a symposium convened at Rutgers Law School in 1983 to assess the impact of the trio's first two books, one commentator wrote that "the authors have had an impact on the law governing child welfare decisions that would exceed any academician's wildest expectations." Taub, supra, at 485. Another author, surveying judicial and academic reactions to the first book in 1979, wrote that Beyond the Best Interests of the Child "became what any author would most fervently desire his or her book to become: that which everyone must mention or risk being seen as an ignorant provincial." Richard E. Crouch, An Essay on the Critical and Judicial Reception of Beyond the Best Interests of the Child, 13 Fam. L.Q. 49, 50 (1979). In 1987, the Harvard Law Review published an analysis by New York University law professor and former New York Family Court Judge Peggy C. Davis of 193 judicial opinions published between 1963 and 1984 that cited either the works of the trio or the 1963 unsigned Yale Law Journal Note, Alternatives to 'Parental Right' in Child Custody Disputes Involving Third Parties, 73 Yale L.J. 151 (1963), which previewed some of their ideas. Peggy C. Davis, "There is a Book Out. . . ": An Analysis of Judicial Absorption of Legislative Facts, 100 Harv. L. Rev. 1539 (1987). As Chapter Six, II.C.2 explains in more depth, critics have lodged cogent, trenchant complaints about the trio's work. In addition, it appears that their ideas have been widely misunderstood or caricatured, inasmuch as some advocates cling to their insistence on minimum state intervention and label them as "pro-biological family" while others focus on their valuing of the psychological parent as "anti-biological family." As a historical phenomenon,
86. In Chapter One of Representing Children, Goldstein, Freud, and Solnit are discussed as follows: Also influential nationally was a trilogy of books written by the distinguished interdisciplinary collaboration of Joseph Goldstein, Albert J. Solnit, and Anna Freud. Goldstein is a Yale Law Professor and a graduate in Career Research from the Western New England Institute for Psychoanalysis. Freud, who died in 1982, was the Director of the Hampstead Child-Therapy Clinic and the prolific author of works on psychoanalysis and child development. Solnit, a child psychiatrist, wrote the books when he was the Director of the Yale Child Study Center and a Yale Medical School professor of Pediatrics and Psychiatry. Sonja Goldstein, who formally joined the collaboration in the third book, is a lawyer and lecturer at the Yale Child Study Center and Law School. The first book, Beyond the Best Interests of the Child, published in 1973, laid out guidelines for child placement laws, premised upon the child developmental principles of continuity, a child's sense of time, and the limits of law and prediction. The book recommended that judges apply the "best interests of the child" standard placing the child permanently with his psychological parent. The second book, Before the Best Interests of the Child, published in 1979, focused on grounds for state intervention into families in the first instance, laying out concrete standards which are designed to limit state intervention to a minimum. In In the Best Interests of the Child, published in 1986, the trio, joined by Sonja Goldstein, focus on the roles of professionals in the child placement process, arguing that professionals should generally stay within the boundaries of their own professional competence, crossing those boundaries only in rare, carefully thought through circumstances. The influence of these books was immediate and profound. "[E]very subsequent proposal for reform of the child welfare system has drawn its vocabulary and central ideas from Goldstein, Freud and Solnit's conceptual framework." Nadine Taub, Assessing the Impact of Goldstein, Freud and Solnit's Proposals: An Introductory Overview, 12 N.Y.U. Rev. L. & Soc. Change 485, 485 (1983-84). By 1983, one commentator, Brooklyn law professor Marsha Garrison, reported that the trio's "central conclusions about the needs of children in long-term foster care have gained remarkably widespread acceptance." Marsha Garrison, Why Terminate Parental Rights?, 35 Stan. L. Rev. 423, 449 (1982-83) (footnote omitted). Garrison noted that the trio's premises "strongly influenced recent state foster care legislation and several model acts dealing with termination of parental rights for children in long term foster care," id. at 449-50 (footnotes omitted), as well as social work handbooks and works of national planning commissions. Walking through the halls of juvenile and family courts around the country, one can hear terms coined or popularized by the authors, especially psychological parenting, permanency planning, continuity, and the child's sense of time, bandied about during routine bargaining on individual cases. At a symposium convened at Rutgers Law School in 1983 to assess the impact of the trio's first two books, one commentator wrote that "the authors have had an impact on the law governing child welfare decisions that would exceed any academician's wildest expectations." Taub, supra, at 485. Another author, surveying judicial and academic reactions to the first book in 1979, wrote that Beyond the Best Interests of the Child "became what any author would most fervently desire his or her book to become: that which everyone must mention or risk being seen as an ignorant provincial." Richard E. Crouch, An Essay on the Critical and Judicial Reception of Beyond the Best Interests of the Child, 13 Fam. L.Q. 49, 50 (1979). In 1987, the Harvard Law Review published an analysis by New York University law professor and former New York Family Court Judge Peggy C. Davis of 193 judicial opinions published between 1963 and 1984 that cited either the works of the trio or the 1963 unsigned Yale Law Journal Note, Alternatives to 'Parental Right' in Child Custody Disputes Involving Third Parties, 73 Yale L.J. 151 (1963), which previewed some of their ideas. Peggy C. Davis, "There is a Book Out. . . ": An Analysis of Judicial Absorption of Legislative Facts, 100 Harv. L. Rev. 1539 (1987). As Chapter Six, II.C.2 explains in more depth, critics have lodged cogent, trenchant complaints about the trio's work. In addition, it appears that their ideas have been widely misunderstood or caricatured, inasmuch as some advocates cling to their insistence on minimum state intervention and label them as "pro-biological family" while others focus on their valuing of the psychological parent as "anti-biological family." As a historical phenomenon,
87. In Chapter One of Representing Children, Goldstein, Freud, and Solnit are discussed as follows: Also influential nationally was a trilogy of books written by the distinguished interdisciplinary collaboration of Joseph Goldstein, Albert J. Solnit, and Anna Freud. Goldstein is a Yale Law Professor and a graduate in Career Research from the Western New England Institute for Psychoanalysis. Freud, who died in 1982, was the Director of the Hampstead Child-Therapy Clinic and the prolific author of works on psychoanalysis and child development. Solnit, a child psychiatrist, wrote the books when he was the Director of the Yale Child Study Center and a Yale Medical School professor of Pediatrics and Psychiatry. Sonja Goldstein, who formally joined the collaboration in the third book, is a lawyer and lecturer at the Yale Child Study Center and Law School. The first book, Beyond the Best Interests of the Child, published in 1973, laid out guidelines for child placement laws, premised upon the child developmental principles of continuity, a child's sense of time, and the limits of law and prediction. The book recommended that judges apply the "best interests of the child" standard placing the child permanently with his psychological parent. The second book, Before the Best Interests of the Child, published in 1979, focused on grounds for state intervention into families in the first instance, laying out concrete standards which are designed to limit state intervention to a minimum. In In the Best Interests of the Child, published in 1986, the trio, joined by Sonja Goldstein, focus on the roles of professionals in the child placement process, arguing that professionals should generally stay within the boundaries of their own professional competence, crossing those boundaries only in rare, carefully thought through circumstances. The influence of these books was immediate and profound. "[E]very subsequent proposal for reform of the child welfare system has drawn its vocabulary and central ideas from Goldstein, Freud and Solnit's conceptual framework." Nadine Taub, Assessing the Impact of Goldstein, Freud and Solnit's Proposals: An Introductory Overview, 12 N.Y.U. Rev. L. & Soc. Change 485, 485 (1983-84). By 1983, one commentator, Brooklyn law professor Marsha Garrison, reported that the trio's "central conclusions about the needs of children in long-term foster care have gained remarkably widespread acceptance." Marsha Garrison, Why Terminate Parental Rights?, 35 Stan. L. Rev. 423, 449 (1982-83) (footnote omitted). Garrison noted that the trio's premises "strongly influenced recent state foster care legislation and several model acts dealing with termination of parental rights for children in long term foster care," id. at 449-50 (footnotes omitted), as well as social work handbooks and works of national planning commissions. Walking through the halls of juvenile and family courts around the country, one can hear terms coined or popularized by the authors, especially psychological parenting, permanency planning, continuity, and the child's sense of time, bandied about during routine bargaining on individual cases. At a symposium convened at Rutgers Law School in 1983 to assess the impact of the trio's first two books, one commentator wrote that "the authors have had an impact on the law governing child welfare decisions that would exceed any academician's wildest expectations." Taub, supra, at 485. Another author, surveying judicial and academic reactions to the first book in 1979, wrote that Beyond the Best Interests of the Child "became what any author would most fervently desire his or her book to become: that which everyone must mention or risk being seen as an ignorant provincial." Richard E. Crouch, An Essay on the Critical and Judicial Reception of Beyond the Best Interests of the Child, 13 Fam. L.Q. 49, 50 (1979). In 1987, the Harvard Law Review published an analysis by New York University law professor and former New York Family Court Judge Peggy C. Davis of 193 judicial opinions published between 1963 and 1984 that cited either the works of the trio or the 1963 unsigned Yale Law Journal Note, Alternatives to 'Parental Right' in Child Custody Disputes Involving Third Parties, 73 Yale L.J. 151 (1963), which previewed some of their ideas. Peggy C. Davis, "There is a Book Out. . . ": An Analysis of Judicial Absorption of Legislative Facts, 100 Harv. L. Rev. 1539 (1987). As Chapter Six, II.C.2 explains in more depth, critics have lodged cogent, trenchant complaints about the trio's work. In addition, it appears that their ideas have been widely misunderstood or caricatured, inasmuch as some advocates cling to their insistence on minimum state intervention and label them as "pro-biological family" while others focus on their valuing of the psychological parent as "anti-biological family." As a historical phenomenon,
88. In Chapter One of Representing Children, Goldstein, Freud, and Solnit are discussed as follows: Also influential nationally was a trilogy of books written by the distinguished interdisciplinary collaboration of Joseph Goldstein, Albert J. Solnit, and Anna Freud. Goldstein is a Yale Law Professor and a graduate in Career Research from the Western New England Institute for Psychoanalysis. Freud, who died in 1982, was the Director of the Hampstead Child-Therapy Clinic and the prolific author of works on psychoanalysis and child development. Solnit, a child psychiatrist, wrote the books when he was the Director of the Yale Child Study Center and a Yale Medical School professor of Pediatrics and Psychiatry. Sonja Goldstein, who formally joined the collaboration in the third book, is a lawyer and lecturer at the Yale Child Study Center and Law School. The first book, Beyond the Best Interests of the Child, published in 1973, laid out guidelines for child placement laws, premised upon the child developmental principles of continuity, a child's sense of time, and the limits of law and prediction. The book recommended that judges apply the "best interests of the child" standard placing the child permanently with his psychological parent. The second book, Before the Best Interests of the Child, published in 1979, focused on grounds for state intervention into families in the first instance, laying out concrete standards which are designed to limit state intervention to a minimum. In In the Best Interests of the Child, published in 1986, the trio, joined by Sonja Goldstein, focus on the roles of professionals in the child placement process, arguing that professionals should generally stay within the boundaries of their own professional competence, crossing those boundaries only in rare, carefully thought through circumstances. The influence of these books was immediate and profound. "[E]very subsequent proposal for reform of the child welfare system has drawn its vocabulary and central ideas from Goldstein, Freud and Solnit's conceptual framework." Nadine Taub, Assessing the Impact of Goldstein, Freud and Solnit's Proposals: An Introductory Overview, 12 N.Y.U. Rev. L. & Soc. Change 485, 485 (1983-84). By 1983, one commentator, Brooklyn law professor Marsha Garrison, reported that the trio's "central conclusions about the needs of children in long-term foster care have gained remarkably widespread acceptance." Marsha Garrison, Why Terminate Parental Rights?, 35 Stan. L. Rev. 423, 449 (1982-83) (footnote omitted). Garrison noted that the trio's premises "strongly influenced recent state foster care legislation and several model acts dealing with termination of parental rights for children in long term foster care," id. at 449-50 (footnotes omitted), as well as social work handbooks and works of national planning commissions. Walking through the halls of juvenile and family courts around the country, one can hear terms coined or popularized by the authors, especially psychological parenting, permanency planning, continuity, and the child's sense of time, bandied about during routine bargaining on individual cases. At a symposium convened at Rutgers Law School in 1983 to assess the impact of the trio's first two books, one commentator wrote that "the authors have had an impact on the law governing child welfare decisions that would exceed any academician's wildest expectations." Taub, supra, at 485. Another author, surveying judicial and academic reactions to the first book in 1979, wrote that Beyond the Best Interests of the Child "became what any author would most fervently desire his or her book to become: that which everyone must mention or risk being seen as an ignorant provincial." Richard E. Crouch, An Essay on the Critical and Judicial Reception of Beyond the Best Interests of the Child, 13 Fam. L.Q. 49, 50 (1979). In 1987, the Harvard Law Review published an analysis by New York University law professor and former New York Family Court Judge Peggy C. Davis of 193 judicial opinions published between 1963 and 1984 that cited either the works of the trio or the 1963 unsigned Yale Law Journal Note, Alternatives to 'Parental Right' in Child Custody Disputes Involving Third Parties, 73 Yale L.J. 151 (1963), which previewed some of their ideas. Peggy C. Davis, "There is a Book Out. . . ": An Analysis of Judicial Absorption of Legislative Facts, 100 Harv. L. Rev. 1539 (1987). As Chapter Six, II.C.2 explains in more depth, critics have lodged cogent, trenchant complaints about the trio's work. In addition, it appears that their ideas have been widely misunderstood or caricatured, inasmuch as some advocates cling to their insistence on minimum state intervention and label them as "pro-biological family" while others focus on their valuing of the psychological parent as "anti-biological family." As a historical phenomenon,
89. Joseph Goldstein et al., Beyond the Best Interests of the Child 53 (1973) [hereinafter Beyond].
90. Id. at 54.
91. Id.
92. Id. at 63.
93. Id.
94. Id. at 53 (emphasis added).
95. Id. at 40.
96. Id. at 40-41.
97. Id. at 43.
98. Id. at 43.
99. Id. at 49.
100. Id. at 49-50.
101. W. at 52. In support of this principle, the authors cite three factors identified by Anna Freud which "make prediction difficult and hazardous": (1) possibly uneven rates of maturation of ego and drive developments; (2) inability to quantify or to foresee drive development; and (3) unpredictable "environmental happenings in a child's life." Id. at 51 n.36.
102. W. at 52. In support of this principle, the authors cite three factors identified by Anna Freud which "make prediction difficult and hazardous": (1) possibly uneven rates of maturation of ego and drive developments; (2) inability to quantify or to foresee drive development; and (3) unpredictable "environmental happenings in a child's life." Id. at 51 n.36.
103. Id. at 20.
104. Id. at 21.
105. Id. at 20.
106. Id. at 18.
107. Id. at 31-32.
108. Id. at 32. "[E]motional attachments are tenuous and vulnerable in early life and need stability of external arrangements for their development." Id. at 34.
109. Id. at 32. "[E]motional attachments are tenuous and vulnerable in early life and need stability of external arrangements for their development." Id. at 34.
110. Id. at 32-34.
111. Id. at 35.
112. Id. at 38 (footnote omitted).
113. Id. at 19.
114. Id.
115. Id. at 12.
116. Joseph Goldstein et al., Before the Best Interests of the Child 54 (1979) [hereinafter Before].
117. Id. at 11-14.
118. See infra notes 92-98 and accompanying text.
119. Before, supra note 89, at 112.
120. Id. The authors suggest, for instance, that In re Gault "reaffirms the right of a child to have his own parents make decisions about what he needs." Id. at 129. The authors read Gault as a strong statement of the right of parents to have their children represented by counsel. Other commentators dispute this reading. See, e.g., Martin Guggenheim, The Right to Be Represented but Not Heard: Reflections on Legal Representation for Children, 59 N.Y.U. L. Rev. 76, 89-90 (1984) (arguing that Goldstein, Freud, and Solnit ignore the concern for the child's personal autonomy underlying Gault). Certainly, states following Gault have focussed primarily on the child's right to counsel. See, e.g., Conn. Gen. Stat. Ann. § 46b-136 (West 1995); N.Y. Fam. Ct. Act § 249 (McKinney 1983 & Supp. 1996).
121. Before, supra note 89, at 112.
122. Beyond, supra note 64, at 66.
123. Id. at 67.
124. Joseph Goldstein et al., In the Best Interests of the Child 90-91 (1986) [hereinafter In] (describing views set forth in Before).
125. Before, supra note 89, at 128. Goldstein, Freud, and Solnit prescribe that the parent remain involved in the lawyer-child client relationship unless and until "the presumption of parental autonomy has been overcome." Id. at 112.
126. Beyond, supra note 64, at 67.
127. In, supra note 97, at 33, 78.
128. Id. at 33.
129. Id.
130. Id. at 78.
131. Id. at 3-5.
132. The authors also make other interesting points about lawyering for children, relating to requiring one lawyer to represent all siblings, Before, supra note 64, at 116-17, the special conundra of lawyers representing children in a class action, id. at 116, and the widespread misconception that giving a child a lawyer is an unmitigated good. Id. at 117.
133. Patricia M. Wald, The Kindness of Strangers, 97 Yale L.J. 1477, 1478 (1988) (book review).
134. As noted in the historical summary above, the trio's ideas were received favorably in the foster-care context, and resoundingly negatively in the divorce context. Marsha Garrison, Why Terminate Parental Rights?, 35 Stan. L. Rev. 423, 453 (1983).
135. Symposium, The Impact of Psychological Parenting on Child Welfare Decision Making, 12 N.Y.U. Rev. L. & Soc. Change 485 (1983-84). The Journal also plans to publish proceedings of a follow-up symposium which took place in April 1994. 22 N.Y.U. Rev. L. & Soc. Change (forthcoming 1995-96).
136. This section will focus on the sociologically based critiques of the psychological data relied upon in the trilogy. A larger substantive critique - attacking the monotropic psychological parenting theory and preferring a "family network" approach focusing on a web of supports for the child, rather than the dyadic mother-child relationship - is presented as Model Four below.
137. Everett Waters & Donna M. Noyes, Psychological Parenting vs. Attachment Theory: The Child's Best Interests and the Risks in Doing the Right Things for the Wrong Reasons, 12 N.Y.U. Rev. L. & Soc. Change 505, 513 (1983-84) (citation omitted).
138. Id.
139. See, e.g., Daniel Katkin et al., Above and Beyond the Best Interests of the Child: An Inquiry Into the Relationship Between Social Science and Social Action, 8 Law & Soc. Rev., 669, 675 (1974) (criticizing the authors for their failure to distinguish separation from deprivation). These commentators generally critique the first book for its lack of a "single reference to any empirical study in the extensive literature on adoption and foster placement" and its "failure to review the literature. " Id. at 672.
140. See, e.g., Daniel Katkin et al., Above and Beyond the Best Interests of the Child: An Inquiry Into the Relationship Between Social Science and Social Action, 8 Law & Soc. Rev., 669, 675 (1974) (criticizing the authors for their failure to distinguish separation from deprivation). These commentators generally critique the first book for its lack of a "single reference to any empirical study in the extensive literature on adoption and foster placement" and its "failure to review the literature. " Id. at 672.
141. Waters & Noyes, supra note 110, at 511.
142. Carol B. Stack, Cultural Perspectives on Child Welfare, 12 N.Y.U. Rev. L. & Soc. Change 539, 540-41 (1983-84).
143. Id. at 541.
144. Committee on the Family, Group for the Advancement of Psychiatry, New Trends in Child Custody Disputes 80-81 (1980), cited in Peggy C. Davis, Use and Abuse of the Power to Sever Family Bonds, 12 N.Y.U. Rev. L. & Soc. Change 557, 569 (1983-84).
145. Joseph Goldstein, in an interview published with the NYU Review of Law and Social Change 1984 Symposium, notes that the notion of continuity set forth in Beyond acknowledges extended family groupings: We are very respectful of what families of different ethnic groups, origins or economic status believe is best for their children. Our guidelines are much more protective of a variety of family lifestyles than are many existing laws, which are too broad and vague and put all too much discretion in the hands of workers with middle-class notions about good childrearing. . . . . . . . The notion of continuity pertains to continuity of relationships, continuity of settings, continuity of lifestyles. Consider a child who has grown up in a commune of some sort, and has had to leave the commune at an age where that style of life is what she anticipates and thrives on. If the setting was not the cause for the child's being removed, then every effort should be made to place her in a similar setting to reduce the difficulty of the transfer in terms of as many factors as possible. Interview with Joseph Goldstein, 12 N.Y.U. Rev. L. & Soc. Change 575, 580 (1983-84). On December 2, 1995, at a conference in honor of the centenary of the birth of Anna Freud, Joseph Goldstein reiterated that the trio's continuity guidelines would honor one or more psychological parents. Comments of Joseph Goldstein, Anna Freud at Yale, Developmental Concepts Updated & Applied (Dec. 2, 1995) (on file with the Fordham Law Review).
146. Joseph Goldstein, in an interview published with the NYU Review of Law and Social Change 1984 Symposium, notes that the notion of continuity set forth in Beyond acknowledges extended family groupings: We are very respectful of what families of different ethnic groups, origins or economic status believe is best for their children. Our guidelines are much more protective of a variety of family lifestyles than are many existing laws, which are too broad and vague and put all too much discretion in the hands of workers with middle-class notions about good childrearing. . . . . . . . The notion of continuity pertains to continuity of relationships, continuity of settings, continuity of lifestyles. Consider a child who has grown up in a commune of some sort, and has had to leave the commune at an age where that style of life is what she anticipates and thrives on. If the setting was not the cause for the child's being removed, then every effort should be made to place her in a similar setting to reduce the difficulty of the transfer in terms of as many factors as possible. Interview with Joseph Goldstein, 12 N.Y.U. Rev. L. & Soc. Change 575, 580 (1983-84). On December 2, 1995, at a conference in honor of the centenary of the birth of Anna Freud, Joseph Goldstein reiterated that the trio's continuity guidelines would honor one or more psychological parents. Comments of Joseph Goldstein, Anna Freud at Yale, Developmental Concepts Updated & Applied (Dec. 2, 1995) (on file with the Fordham Law Review).
147. David Fanshel, Urging Restraint in Terminating the Rights of Parents of Children in Foster Care, 12 N.Y.U. Rev. L. & Soc. Change 501, 503 (1983-84).
148. Linda Gordon, Child Abuse, Gender, and the Myth of Family Independence: Thoughts on the History of Family Violence and its Social Control 1880-1920, 12 N.Y.U. Rev. L. & Soc. Change 523, 535-36 (1983-84) [hereinafter Thoughts on Family Violence]; see also Linda Gordon, Heroes of Their Own Lives: The Politics and History of Family Violence, Boston 1880-1960, at 55-58, 84-86 (1988) (discussing the Society for the Prevention of Cruelty to Children's effort to construct a new family ideology according to a modern version of male supremacy where the father had total responsibility for economic support and the mother was involved full-time in psychological development of children; noting great difficulty of the poor in conforming to new family standards); Linda Gordon, Family Violence, Feminism, and Social Control, in Women, the State, and Welfare 178, 187-93 (Linda Gordon ed., 1990) (arguing that poor urban mothers were extremely vulnerable to loss of their children given new child-raising norms brought on by industrial capitalism); Nancy Chodorow & Susan Contratto, The Fantasy of the Perfect Mother, in Rethinking the Family: Some Feminist Questions 54, 63-64 (Barrie Thorne ed., 1982) (arguing that post-Freudian psychology assumes the mother-child isolated unit that nineteenth-century industrial development and cultural ideology produced and thus gives extraordinary significance to early mother-infant relationship for psychological and emotional development of the child); Ilene Philipson, Child Rearing Literature an Capitalist Industrialization, 26 Berkeley J. of Soc. 57, 57-73 (1981) (arguing that industrialization eroded the economic foundation of the family, substituting emphasis on emotional attachment in the mother-child relationship). I thank Kimberley D. Harris, Yale Law School '96, for her research connected with this subject.
149. Linda Gordon, Child Abuse, Gender, and the Myth of Family Independence: Thoughts on the History of Family Violence and its Social Control 1880-1920, 12 N.Y.U. Rev. L. & Soc. Change 523, 535-36 (1983-84) [hereinafter Thoughts on Family Violence]; see also Linda Gordon, Heroes of Their Own Lives: The Politics and History of Family Violence, Boston 1880-1960, at 55-58, 84-86 (1988) (discussing the Society for the Prevention of Cruelty to Children's effort to construct a new family ideology according to a modern version of male supremacy where the father had total responsibility for economic support and the mother was involved full-time in psychological development of children; noting great difficulty of the poor in conforming to new family standards); Linda Gordon, Family Violence, Feminism, and Social Control, in Women, the State, and Welfare 178, 187-93 (Linda Gordon ed., 1990) (arguing that poor urban mothers were extremely vulnerable to loss of their children given new child-raising norms brought on by industrial capitalism); Nancy Chodorow & Susan Contratto, The Fantasy of the Perfect Mother, in Rethinking the Family: Some Feminist Questions 54, 63-64 (Barrie Thorne ed., 1982) (arguing that post-Freudian psychology assumes the mother-child isolated unit that nineteenth-century industrial development and cultural ideology produced and thus gives extraordinary significance to early mother-infant relationship for psychological and emotional development of the child); Ilene Philipson, Child Rearing Literature an Capitalist Industrialization, 26 Berkeley J. of Soc. 57, 57-73 (1981) (arguing that industrialization eroded the economic foundation of the family, substituting emphasis on emotional attachment in the mother-child relationship). I thank Kimberley D. Harris, Yale Law School '96, for her research connected with this subject.
150. Linda Gordon, Child Abuse, Gender, and the Myth of Family Independence: Thoughts on the History of Family Violence and its Social Control 1880-1920, 12 N.Y.U. Rev. L. & Soc. Change 523, 535-36 (1983-84) [hereinafter Thoughts on Family Violence]; see also Linda Gordon, Heroes of Their Own Lives: The Politics and History of Family Violence, Boston 1880-1960, at 55-58, 84-86 (1988) (discussing the Society for the Prevention of Cruelty to Children's effort to construct a new family ideology according to a modern version of male supremacy where the father had total responsibility for economic support and the mother was involved full-time in psychological development of children; noting great difficulty of the poor in conforming to new family standards); Linda Gordon, Family Violence, Feminism, and Social Control, in Women, the State, and Welfare 178, 187-93 (Linda Gordon ed., 1990) (arguing that poor urban mothers were extremely vulnerable to loss of their children given new child-raising norms brought on by industrial capitalism); Nancy Chodorow & Susan Contratto, The Fantasy of the Perfect Mother, in Rethinking the Family: Some Feminist Questions 54, 63-64 (Barrie Thorne ed., 1982) (arguing that post-Freudian psychology assumes the mother-child isolated unit that nineteenth-century industrial development and cultural ideology produced and thus gives extraordinary significance to early mother-infant relationship for psychological and emotional development of the child); Ilene Philipson, Child Rearing Literature an Capitalist Industrialization, 26 Berkeley J. of Soc. 57, 57-73 (1981) (arguing that industrialization eroded the economic foundation of the family, substituting emphasis on emotional attachment in the mother-child relationship). I thank Kimberley D. Harris, Yale Law School '96, for her research connected with this subject.
151. Linda Gordon, Child Abuse, Gender, and the Myth of Family Independence: Thoughts on the History of Family Violence and its Social Control 1880-1920, 12 N.Y.U. Rev. L. & Soc. Change 523, 535-36 (1983-84) [hereinafter Thoughts on Family Violence]; see also Linda Gordon, Heroes of Their Own Lives: The Politics and History of Family Violence, Boston 1880-1960, at 55-58, 84-86 (1988) (discussing the Society for the Prevention of Cruelty to Children's effort to construct a new family ideology according to a modern version of male supremacy where the father had total responsibility for economic support and the mother was involved full-time in psychological development of children; noting great difficulty of the poor in conforming to new family standards); Linda Gordon, Family Violence, Feminism, and Social Control, in Women, the State, and Welfare 178, 187-93 (Linda Gordon ed., 1990) (arguing that poor urban mothers were extremely vulnerable to loss of their children given new child-raising norms brought on by industrial capitalism); Nancy Chodorow & Susan Contratto, The Fantasy of the Perfect Mother, in Rethinking the Family: Some Feminist Questions 54, 63-64 (Barrie Thorne ed., 1982) (arguing that post-Freudian psychology assumes the mother-child isolated unit that nineteenth-century industrial development and cultural ideology produced and thus gives extraordinary significance to early mother-infant relationship for psychological and emotional development of the child); Ilene Philipson, Child Rearing Literature an Capitalist Industrialization, 26 Berkeley J. of Soc. 57, 57-73 (1981) (arguing that industrialization eroded the economic foundation of the family, substituting emphasis on emotional attachment in the mother-child relationship). I thank Kimberley D. Harris, Yale Law School '96, for her research connected with this subject.
152. Linda Gordon, Child Abuse, Gender, and the Myth of Family Independence: Thoughts on the History of Family Violence and its Social Control 1880-1920, 12 N.Y.U. Rev. L. & Soc. Change 523, 535-36 (1983-84) [hereinafter Thoughts on Family Violence]; see also Linda Gordon, Heroes of Their Own Lives: The Politics and History of Family Violence, Boston 1880-1960, at 55-58, 84-86 (1988) (discussing the Society for the Prevention of Cruelty to Children's effort to construct a new family ideology according to a modern version of male supremacy where the father had total responsibility for economic support and the mother was involved full-time in psychological development of children; noting great difficulty of the poor in conforming to new family standards); Linda Gordon, Family Violence, Feminism, and Social Control, in Women, the State, and Welfare 178, 187-93 (Linda Gordon ed., 1990) (arguing that poor urban mothers were extremely vulnerable to loss of their children given new child-raising norms brought on by industrial capitalism); Nancy Chodorow & Susan Contratto, The Fantasy of the Perfect Mother, in Rethinking the Family: Some Feminist Questions 54, 63-64 (Barrie Thorne ed., 1982) (arguing that post-Freudian psychology assumes the mother-child isolated unit that nineteenth-century industrial development and cultural ideology produced and thus gives extraordinary significance to early mother-infant relationship for psychological and emotional development of the child); Ilene Philipson, Child Rearing Literature an Capitalist Industrialization, 26 Berkeley J. of Soc. 57, 57-73 (1981) (arguing that industrialization eroded the economic foundation of the family, substituting emphasis on emotional attachment in the mother-child relationship). I thank Kimberley D. Harris, Yale Law School '96, for her research connected with this subject.
153. Gordon, Thoughts on Family Violence, supra note 119, at 536.
154. Id. The period after World War II was a "unique historical juncture" for Western women as mothers, as more middle-class women than ever before in America and Britain occupied an increasingly private and isolated sphere as full-time mothers. Michael J. Bader & Ilene J. Philipson, Narcissism and Family Structure: A Social-Historical Perspective, 3 Psychoanalysis & Contemp. Thought 299, 314 (1980). Not only did fertility rates peak in the twelve years after World War II, Paul England & George Farkas, Households, Employment, and Gender: A Social, Economic, and Demographic View 12-13 (1986), but mass migration to the suburbs weakened extended family ties and left many women to raise their children in relative isolation. Bader & Philipson, supra, at 315. Bader and Philipson argue that this set of unique historical circumstances gave rise to a cultural and scientific idealization of the mother-child dyad, in which "[m]othering took on such ideological significance in the 1940s and '50s that a new host of experts arose to deal with every imaginable problem a mother might encounter, and to warn of every possible disaster that might arise if she were not constantly vigilant." Id. at 316; see also Ann Dally, Inventing Motherhood: The Consequences of an Ideal 96 (1982) (noting that among the complex mechanisms behind the postwar idealization of motherhood was the need for women to leave industrial jobs which they had held in wartime in order to make room for returning male veterans); Representations of Motherhood 6 (Donna Bassin et al. eds., 1994) (noting the "concerted postwar shift to return women to the home"); cf. Juliet B. Schor, The Overworked American: The Unexpected Decline of Leisure 83-105 (1991) (arguing that the postwar idealization of the isolated mother-child dyad was the culmination of an economic process beginning in the nineteenth century to remove paid work from the home and to restrict women to unpaid housekeeping tasks; ironically, these tasks consumed more time even as household investment in ostensibly labor saving capital equipment (e.g., washing machines, dishwashers) increased in the periods immediately before and after World War II); Reva B. Siegel, Home As Work: The First Woman's Rights Claims Concerning Wives' Household Labor, 1850-1880, 103 Yale L.J. 1073 (1994) (tracing women's resistance as early as the 1850s to the shift from a household economy in which women were paid for work brought into the home to one in which women were restricted to unpaid child-rearing and housework).
155. Id. The period after World War II was a "unique historical juncture" for Western women as mothers, as more middle-class women than ever before in America and Britain occupied an increasingly private and isolated sphere as full-time mothers. Michael J. Bader & Ilene J. Philipson, Narcissism and Family Structure: A Social-Historical Perspective, 3 Psychoanalysis & Contemp. Thought 299, 314 (1980). Not only did fertility rates peak in the twelve years after World War II, Paul England & George Farkas, Households, Employment, and Gender: A Social, Economic, and Demographic View 12-13 (1986), but mass migration to the suburbs weakened extended family ties and left many women to raise their children in relative isolation. Bader & Philipson, supra, at 315. Bader and Philipson argue that this set of unique historical circumstances gave rise to a cultural and scientific idealization of the mother-child dyad, in which "[m]othering took on such ideological significance in the 1940s and '50s that a new host of experts arose to deal with every imaginable problem a mother might encounter, and to warn of every possible disaster that might arise if she were not constantly vigilant." Id. at 316; see also Ann Dally, Inventing Motherhood: The Consequences of an Ideal 96 (1982) (noting that among the complex mechanisms behind the postwar idealization of motherhood was the need for women to leave industrial jobs which they had held in wartime in order to make room for returning male veterans); Representations of Motherhood 6 (Donna Bassin et al. eds., 1994) (noting the "concerted postwar shift to return women to the home"); cf. Juliet B. Schor, The Overworked American: The Unexpected Decline of Leisure 83-105 (1991) (arguing that the postwar idealization of the isolated mother-child dyad was the culmination of an economic process beginning in the nineteenth century to remove paid work from the home and to restrict women to unpaid housekeeping tasks; ironically, these tasks consumed more time even as household investment in ostensibly labor saving capital equipment (e.g., washing machines, dishwashers) increased in the periods immediately before and after World War II); Reva B. Siegel, Home As Work: The First Woman's Rights Claims Concerning Wives' Household Labor, 1850-1880, 103 Yale L.J. 1073 (1994) (tracing women's resistance as early as the 1850s to the shift from a household economy in which women were paid for work brought into the home to one in which women were restricted to unpaid child-rearing and housework).
156. Id. The period after World War II was a "unique historical juncture" for Western women as mothers, as more middle-class women than ever before in America and Britain occupied an increasingly private and isolated sphere as full-time mothers. Michael J. Bader & Ilene J. Philipson, Narcissism and Family Structure: A Social-Historical Perspective, 3 Psychoanalysis & Contemp. Thought 299, 314 (1980). Not only did fertility rates peak in the twelve years after World War II, Paul England & George Farkas, Households, Employment, and Gender: A Social, Economic, and Demographic View 12-13 (1986), but mass migration to the suburbs weakened extended family ties and left many women to raise their children in relative isolation. Bader & Philipson, supra, at 315. Bader and Philipson argue that this set of unique historical circumstances gave rise to a cultural and scientific idealization of the mother-child dyad, in which "[m]othering took on such ideological significance in the 1940s and '50s that a new host of experts arose to deal with every imaginable problem a mother might encounter, and to warn of every possible disaster that might arise if she were not constantly vigilant." Id. at 316; see also Ann Dally, Inventing Motherhood: The Consequences of an Ideal 96 (1982) (noting that among the complex mechanisms behind the postwar idealization of motherhood was the need for women to leave industrial jobs which they had held in wartime in order to make room for returning male veterans); Representations of Motherhood 6 (Donna Bassin et al. eds., 1994) (noting the "concerted postwar shift to return women to the home"); cf. Juliet B. Schor, The Overworked American: The Unexpected Decline of Leisure 83-105 (1991) (arguing that the postwar idealization of the isolated mother-child dyad was the culmination of an economic process beginning in the nineteenth century to remove paid work from the home and to restrict women to unpaid housekeeping tasks; ironically, these tasks consumed more time even as household investment in ostensibly labor saving capital equipment (e.g., washing machines, dishwashers) increased in the periods immediately before and after World War II); Reva B. Siegel, Home As Work: The First Woman's Rights Claims Concerning Wives' Household Labor, 1850-1880, 103 Yale L.J. 1073 (1994) (tracing women's resistance as early as the 1850s to the shift from a household economy in which women were paid for work brought into the home to one in which women were restricted to unpaid child-rearing and housework).
157. Id. The period after World War II was a "unique historical juncture" for Western women as mothers, as more middle-class women than ever before in America and Britain occupied an increasingly private and isolated sphere as full-time mothers. Michael J. Bader & Ilene J. Philipson, Narcissism and Family Structure: A Social-Historical Perspective, 3 Psychoanalysis & Contemp. Thought 299, 314 (1980). Not only did fertility rates peak in the twelve years after World War II, Paul England & George Farkas, Households, Employment, and Gender: A Social, Economic, and Demographic View 12-13 (1986), but mass migration to the suburbs weakened extended family ties and left many women to raise their children in relative isolation. Bader & Philipson, supra, at 315. Bader and Philipson argue that this set of unique historical circumstances gave rise to a cultural and scientific idealization of the mother-child dyad, in which "[m]othering took on such ideological significance in the 1940s and '50s that a new host of experts arose to deal with every imaginable problem a mother might encounter, and to warn of every possible disaster that might arise if she were not constantly vigilant." Id. at 316; see also Ann Dally, Inventing Motherhood: The
158. Id. The period after World War II was a "unique historical juncture" for Western women as mothers, as more middle-class women than ever before in America and Britain occupied an increasingly private and isolated sphere as full-time mothers. Michael J. Bader & Ilene J. Philipson, Narcissism and Family Structure: A Social-Historical Perspective, 3 Psychoanalysis & Contemp. Thought 299, 314 (1980). Not only did fertility rates peak in the twelve years after World War II, Paul England & George Farkas, Households, Employment, and Gender: A Social, Economic, and Demographic View 12-13 (1986), but mass migration to the suburbs weakened extended family ties and left many women to raise their children in relative isolation. Bader & Philipson, supra, at 315. Bader and Philipson argue that this set of unique historical circumstances gave rise to a cultural and scientific idealization of the mother-child dyad, in which "[m]othering took on such ideological significance in the 1940s and '50s that a new host of experts arose to deal with every imaginable problem a mother might encounter, and to warn of every possible disaster that might arise if she were not constantly vigilant." Id. at 316; see also Ann Dally, Inventing Motherhood: The Consequences of an Ideal 96 (1982) (noting that among the complex mechanisms behind the postwar idealization of motherhood was the need for women to leave industrial jobs which they had held in wartime in order to make room for returning male veterans); Representations of Motherhood 6 (Donna Bassin et al. eds., 1994) (noting the "concerted postwar shift to return women to the home"); cf. Juliet B. Schor, The Overworked American: The Unexpected Decline of Leisure 83-105 (1991) (arguing that the postwar idealization of the isolated mother-child dyad was the culmination of an economic process beginning in the nineteenth century to remove paid work from the home and to restrict women to unpaid housekeeping tasks; ironically, these tasks consumed more time even as household investment in ostensibly labor saving capital equipment (e.g., washing machines, dishwashers) increased in the periods immediately before and after World War II); Reva B. Siegel, Home As Work: The First Woman's Rights Claims Concerning Wives' Household Labor, 1850-1880, 103 Yale L.J. 1073 (1994) (tracing women's resistance as early as the 1850s to the shift from a household economy in which women were paid for work brought into the home to one in which women were restricted to unpaid child-rearing and housework).
159. Id. The period after World War II was a "unique historical juncture" for Western women as mothers, as more middle-class women than ever before in America and Britain occupied an increasingly private and isolated sphere as full-time mothers. Michael J. Bader & Ilene J. Philipson, Narcissism and Family Structure: A Social-Historical Perspective, 3 Psychoanalysis & Contemp. Thought 299, 314 (1980). Not only did fertility rates peak in the twelve years after World War II, Paul England & George Farkas, Households, Employment, and Gender: A Social, Economic, and Demographic View 12-13 (1986), but mass migration to the suburbs weakened extended family ties and left many women to raise their children in relative isolation. Bader & Philipson, supra, at 315. Bader and Philipson argue that this set of unique historical circumstances gave rise to a cultural and scientific idealization of the mother-child dyad, in which "[m]othering took on such ideological significance in the 1940s and '50s that a new host of experts arose to deal with every imaginable problem a mother might encounter, and to warn of every possible disaster that might arise if she were not constantly vigilant." Id. at 316; see also Ann Dally, Inventing Motherhood: The Consequences of an Ideal 96 (1982) (noting that among the complex mechanisms behind the postwar idealization of motherhood was the need for women to leave industrial jobs which they had held in wartime in order to make room for returning male veterans); Representations of Motherhood 6 (Donna Bassin et al. eds., 1994) (noting the "concerted postwar shift to return women to the home"); cf. Juliet B. Schor, The Overworked American: The Unexpected Decline of Leisure 83-105 (1991) (arguing that the postwar idealization of the isolated mother-child dyad was the culmination of an economic process beginning in the nineteenth century to remove paid work from the home and to restrict women to unpaid housekeeping tasks; ironically, these tasks consumed more time even as household investment in ostensibly labor saving capital equipment (e.g., washing machines, dishwashers) increased in the periods immediately before and after World War II); Reva B. Siegel, Home As Work: The First Woman's Rights Claims Concerning Wives' Household Labor, 1850-1880, 103 Yale L.J. 1073 (1994) (tracing women's resistance as early as the 1850s to the shift from a household economy in which women were paid for work brought into the home to one in which women were restricted to unpaid child-rearing and housework).
160. Id. The period after World War II was a "unique historical juncture" for Western women as mothers, as more middle-class women than ever before in America and Britain occupied an increasingly private and isolated sphere as full-time mothers. Michael J. Bader & Ilene J. Philipson, Narcissism and Family Structure: A Social-Historical Perspective, 3 Psychoanalysis & Contemp. Thought 299, 314 (1980). Not only did fertility rates peak in the twelve years after World War II, Paul England & George Farkas, Households, Employment, and Gender: A Social, Economic, and Demographic View 12-13 (1986), but mass migration to the suburbs weakened extended family ties and left many women to raise their children in relative isolation. Bader & Philipson, supra, at 315. Bader and Philipson argue that this set of unique historical circumstances gave rise to a cultural and scientific idealization of the mother-child dyad, in which "[m]othering took on such ideological significance in the 1940s and '50s that a new host of experts arose to deal with every imaginable problem a mother might encounter, and to warn of every possible disaster that might arise if she were not constantly vigilant." Id. at 316; see also Ann Dally, Inventing Motherhood: The Consequences of an Ideal 96 (1982) (noting that among the complex mechanisms behind the postwar idealization of motherhood was the need for women to leave industrial jobs which they had held in wartime in order to make room for returning male veterans); Representations of Motherhood 6 (Donna Bassin et al. eds., 1994) (noting the "concerted postwar shift to return women to the home"); cf. Juliet B. Schor, The Overworked American: The Unexpected Decline of Leisure 83-105 (1991) (arguing that the postwar idealization of the isolated mother-child dyad was the culmination of an economic process beginning in the nineteenth century to remove paid work from the home and to restrict women to unpaid housekeeping tasks; ironically, these tasks consumed more time even as household investment in ostensibly labor saving capital equipment (e.g., washing machines, dishwashers) increased in the periods immediately before and after World War II); Reva B. Siegel, Home As Work: The First Woman's Rights Claims Concerning Wives' Household Labor, 1850-1880, 103 Yale L.J. 1073 (1994) (tracing women's resistance as early as the 1850s to the shift from a household economy in which women were paid for work brought into the home to one in which women were restricted to unpaid child-rearing and housework).
161. Martin Guggenheim, The Political and Legal Implications of the Psychological Parenting Theory, 12 N.Y.U. Rev. L. & Soc. Change 549, 549 (1983-84).
162. Id. at 550.
163. Id. at 551.
164. Id.
165. Stack, supra note 114, at 547.
166. As noted earlier, it is critical to perceive the trio's recommendations of limited state intervention and psychological parent placement as a package. See supra notes 92-105 and accompanying text. Unfortunately, it appears that in many contexts the trio's recommendations for psychological parent placement have been followed while the high threshold for state intervention has been ignored. Garrison, supra note 107, at 475-77.
167. In response, Joseph Goldstein notes: It is not just child placement where the poor are disadvantaged, nor is it the result of anything we have said in our books. The experiment on poor families was being carried out long before our guidelines. If anything, the guidelines are intended to hold in check the experiment. . . . We are trying to stay the hand of the state. We hope we have provided a basis for the poor to challenge what social workers do, what child care workers do, and to call into question what has been happening. Interview With Joseph Goldstein, supra note 117, at 582. Professor Goldstein also countered claims that continuity of setting presupposed financial ability and middle class or higher status: There is an order of importance in continuity. We talk about interpersonal relationships with an adult. That is number one and it has nothing to do with money. Then we talk about continuity of surroundings. Now the surroundings may be poor or rich, but we try to protect them to the extent we can. One of the things that emerges from our guidelines is that it ought to be the state's first priority, if it really believes in the child's well being, to provide the minimum financial basis the family needs, the minimum nourishment base, the minimum shelter base, whatever best serves the development of continuous relationships. In fact, if the only reason that a mother or father can't continue to care for the child is because they have no place to live, or no money to buy food, then we would call it child abuse by the state if the state for that reason removed the child from her family. Id. at 580-81.
168. Peggy Cooper Davis, The Good Mother: A New Look at Psychological Parenting Theory, 22 N.Y.U. Rev. L. & Soc. Change (forthcoming 1995-1996) (manuscript at 39, on file with N.Y.U. Rev. L. & Soc. Change).
169. Id. at 24 (citing Marinus H. van IJzendoorn and Louis Tavecchio, The Development of Attachment Theory as a Lakatosian Research Program: Philosophical and Methodological Aspects, in Attachment in Social Networks 24-25 (1987)).
170. Id. at 24 (citing Marinus H. van IJzendoorn and Louis Tavecchio, The Development of Attachment Theory as a Lakatosian Research Program: Philosophical and Methodological Aspects, in Attachment in Social Networks 24-25 (1987)).
171. Id. (emphasis added)
172. Id. at 25 (citing Tavecchio and van IJzendoorn, Perceived Security and Extension of the Child's Rearing Context: A Parent-Report Approach, in Attachment in Social Networks 39-40 (1987)).
173. Id. at 25 (citing Tavecchio and van IJzendoorn, Perceived Security and Extension of the Child's Rearing Context: A Parent-Report Approach, in Attachment in Social Networks 39-40 (1987)).
174. Id.
175. Id. at 26 (citing James H. Bray, Psychosocial Factors Affecting Custodial and Visitation Arrangements, 9 Behavioral Sci. & the L. 419 (1991)). Davis also cites Bray for the proposition that the notion of "one psychological parent" is "controversial and has very little empirical support." Id.
176. Id. at 26 (citing James H. Bray, Psychosocial Factors Affecting Custodial and Visitation Arrangements, 9 Behavioral Sci. & the L. 419 (1991)). Davis also cites Bray for the proposition that the notion of "one psychological parent" is "controversial and has very little empirical support." Id.
177. Id. at 26 (citing James H. Bray, Psychosocial Factors Affecting Custodial and Visitation Arrangements, 9 Behavioral Sci. & the L. 419 (1991)). Davis also cites Bray for the proposition that the notion of "one psychological parent" is "controversial and has very little empirical support." Id.
178. Id. at 20 (citing Charles M. Super and Sara Harkness, The Development of Affect in Infancy and Early Childhood, in Cultural Perspectives on Child Development 1, 15 (Daniel A, Wagner & Harold W. Stevenson eds., 1982)).
179. Id. at 20 (citing Charles M. Super and Sara Harkness, The Development of Affect in Infancy and Early Childhood, in Cultural Perspectives on Child Development 1, 15 (Daniel A, Wagner & Harold W. Stevenson eds., 1982)).
180. Id. at 22-23 (citing Shirley Brice Heath, Ways With Words: Language, Life and Work in Communities and Classrooms 116-17, 121 (1983)).
181. Id. at 22-23 (citing Shirley Brice Heath, Ways With Words: Language, Life and Work in Communities and Classrooms 116-17, 121 (1983)).
182. Letter from Peggy Cooper Davis, N.Y.U. School of Law, to Jean Koh Peters, Yale Law School (October 3, 1995) (on file with the Fordham Law Review).
183. Id. (emphasis omitted).
184. Davis, supra note 129, at 36 (citing Jessica Benjamin, The Omnipotent Mother, in Representations of Motherhood 133 (Donna Bassin et al. eds., 1994) and Jerome Bruner, Actual Minds, Possible Worlds 59-62, 73-77 (1986)).
185. Davis, supra note 129, at 36 (citing Jessica Benjamin, The Omnipotent Mother, in Representations of Motherhood 133 (Donna Bassin et al. eds., 1994) and Jerome Bruner, Actual Minds, Possible Worlds 59-62, 73-77 (1986)).
186. Davis, supra note 129, at 36 (citing Jessica Benjamin, The Omnipotent Mother, in Representations of Motherhood 133 (Donna Bassin et al. eds., 1994) and Jerome Bruner, Actual Minds, Possible Worlds 59-62, 73-77 (1986)).
187. Davis, The Good Mother, supra note 129, at 41 (emphasis added).
188. Id. at 27.
189. Id. at 28. Note that Joseph Goldstein includes in his definition of "continuity of settings" settings beyond the parental dyad, as long as "the setting was not the cause for the child's being removed." Interview with Joseph Goldstein, supra note 117, at 580.
190. Davis, supra note 129, at 9.
191. Id. at 9.
192. Richard Dudley, a behavioral scientist who participated in the 1994 Rutgers symposium, gives examples of important ethno-cultural considerations in the child welfare system's work with African American families. Richard Dudley, Deciding What's Best for Children: Recognizing the Role of Ethnicity and Culture, 22 N.Y.U. Rev. L. & Soc. Change (forthcoming 1995-1996) (manuscript on file with the N.Y.U. Rev. L. & Soc. Change). He defines "culturally competent child welfare-decisionmaking" to require: the full integration of ethno-cultural issues into the overall knowledge base that informs both the assessment and the planning process; the development of the assessment and planning skills required to manage those ethno-cultural issues; and the ongoing work required to remain sensitive to the fact that the differences between one's own ethnocentric view of the world and that of other ethno-cultural groups must be respected and appropriately addressed.
193. Id. at 10. Dudley notes, for example, that African American families are often part of a multi-generational extended family network that includes biologically-related and non-biologically-related ("adopted") kin, who provide emotional and economic support when it is needed. These families are often further characterized by a flexibility in and an overlapping of roles and functions; a flexibility in the boundaries between households; and a subjugation of individual concerns in the interests of family survival. Children raised in families that function in this manner may have numerous adults in their lives who share parenting functions, and they may even move in and out of their biological parents' household. . . .
194. Id. at 13-14. Dudley also comments on the "daily experience of racism" experienced by African Americans from birth.
195. Id. at 15.
196. A genogram is a method for drawing a family tree that records information about family members and the relationships over at least three generations. See generally Monica McGoldrick & Randy Gerson, Genograms in Family Assessment (1985). This book is a helpful manual for constructing genograms in client work.
197. As the Recommendations of the Fordham Conference note, these "actually available alternatives" should also include alternatives that can be created through innovative lawyering, including law reform. Recommendations of the Conference on Ethical Issues in the Legal Profession of Children, 64 Fordham L. Rev. 1301 (1996) [hereinafter Recommendations of the Conference] (part IV.B.3.d.). For instance, the lawyer may believe she can compel the system to create an excellent foster placement for a client even though one does not currently exist. Nevertheless, lawyers must be realistic, although not fatalistic, about what they may ultimately be able to obtain for their clients.
198. See id., part III.D. Lawyers should be aware that the understandings of child development and placement issues in other disciplines are dynamic and constantly changing. The paradigms discussed here will certainly shift, evolve, and probably be replaced in the coming years.
199. This example, taken from my practice, marked my first real understanding of the potential limits of the psychological parent perspective and the necessity of additional child welfare paradigms. I thank Mona Scales, our social work consultant on the case, for her thoughtful and eye-opening teaching about this critical issue.
200. Chapter Seven of the book explores those collaborations in more depth, and suggests some ways to resolve the current resource crunch preventing children's lawyers from retaining these professionals. Peters, Representing Children, supra note 2.
201. Martin Guggenheim would ground this default rule in the substantive law in every state recognizing the child's right to be raised by her parents absent a court finding of unfitness. Guggenheim, supra note 12, at 1429-30. By contrast, Peter Margulies would ground this presumption in honoring the value of connection and commitment in children's lives. Margulies, supra note 10, at 1482, 1493-94.
202. Dr. Solnit, in a discussion at the 1983 Rutgers Symposium, agreed with other participants that the state fails to support low-income families who are at risk of losing their children. "Deprived, confused parents would not have to lose their children, as they do all too often now, if we were more effective in providing supportive services for children and their parents in the home, and if we knew how to provide voluntary services that were attractive and accessible." Solnit/Fanshel Discussion, 12 N.Y.U. Rev. L. & Soc. Change 517, 518 (1983-84).
203. These questions are outlined in the Introduction, supra.
204. Peters, Representing Children, supra note 2. The integrated model is also set forth step-by-step in the Recommendations Section of this Article, infra, part III.
205. The Recommendations of the Fordham Conference contain a modified version of Part D of these Recommendations. Recommendations of the Conference, supra note 147, part VII.A. While this model applied to best-interests decision making in child protective contexts specifically, the conferees modified the model to describe decision making on behalf of the child in a broad range of legal contexts. I fully endorse the conference's broader recommendations.
206. Beyond, supra note 64, at 53.
207. Davis, The Good Mother, supra note 129, at 39.