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From deep in the files labeled, “people you didn’t know you needed in your corner during your divorce,” we bring you the Guardian ad Litem. We welcome Courtney Bowes to the Toaster, a Guardian ad Litem who works with children to ensure their voices don’t get lost in an otherwise noisy process.
Show Notes
From deep in the files labeled, “people you didn’t know you needed in your corner during your divorce,” we bring you the Guardian ad Litem. We welcome Courtney Bowes to the Toaster, a Guardian ad Litem who works with children to ensure their voices don’t get lost in an otherwise noisy process.
Courtney has practiced family law exclusively since graduating from the University of Florida Levin College of Law in 2004. She has served as the featured lecturer at the Tampa Center for Women and the Stetson Law School Family Law Society.
Links & Notes
- (00:00) - Welcome to How to Split a Toaster
- (00:29) - Guardian ad Litem Courtney Bowes
- (01:33) - What Is a Guardian ad Litem?
- (04:16) - Am I giving something up as a parent by bringing in a GAL?
- (09:52) - Kids Generally Aren't In Court With Her
- (11:12) - Heresay Rule
- (13:40) - When Do Parents Bring a GAL on Board?
- (15:54) - Talking to the Kids
- (17:15) - Making Her Recommendation
- (18:19) - Child's Position and Opinion
- (20:39) - Two-Way Street
- (21:40) - How Does She Do Her Job
- (22:50) - Getting Started
- (23:22) - Saving Your Relationship With Your Kid
- (25:28) - Dealing With a GAL in Court
- (30:48) - Judge Weighing GAL's Opinion
- (32:24) - Telling Client to Change Behavior
- (35:40) - Last Thoughts
- (40:06) - Wrapping Up
Creators and Guests
Host
Host
What is How to Split a Toaster: A Divorce Podcast About Saving Your Relationships?
Seth Nelson is a Tampa based family lawyer known for devising creative solutions to difficult problems. In How to Split a Toaster, Nelson and co-host Pete Wright take on the challenge of divorce with a central objective — saving your most important relationships with your family, your former spouse, and yourself.
Pete Wright:
Welcome to How to Split a Toaster, a divorce podcast about saving your relationships from TruStory FM. Today, we're talking about more people you didn't know you needed in your corner, the guardian ad litem.
Seth Nelson:
Welcome to the show everybody. I'm Seth Nelson, as always, with my good friend, Pete. I got to tell you, Pete. I'm excited today because we have Courtney Bowes, a good friend of mine as well. A family law attorney here in the great state of Tampa, more specifically, in Tampa. She is a mediator and a guardian ad litem. I know, Pete. I know-
Pete Wright:
Nobody knows what that means.
Seth Nelson:
... You've been up all night.
Pete Wright:
Yeah.
Seth Nelson:
Google search it.
Pete Wright:
I gave up. We actually had the luxury of meeting a few weeks ago, doing a sound check and I asked Courtney ... I don't know if you remember Courtney, I asked you the one question that had been plaguing me. I didn't know that Tampa legal professionals came from Hogwarts. What are you doing? Why does law make it so hard? Come on.
Seth Nelson:
Courtney's like, "I don't want to be on the show now."
Pete Wright:
Right. I take it back. I take it back. Everything we've ever talked about, I take it back.
Seth Nelson:
Why, Courtney? What's a guardian ad litem, Courtney?
Courtney Bowes:
A guardian ad litem is someone that's appointed by the court to make recommendations that are in the best interest of children, in a particular case. There are guardian ad litems that are appointed in Dependency Court, when the state comes in and becomes involved in someone's family. Then, there's private guardian ad litems, which is the work that I primarily do, where it's a family law issue, whether it's a divorce or a court post-judgment case, and the court appoints a guardian in that respect.
Seth Nelson:
See, she's already making it confusing, Pete. She tried to make it where you could understand it.
Courtney Bowes:
Tried to make it easier.
Seth Nelson:
Yeah. She's like, "Well, where"-
Courtney Bowes:
We're back to potions with Professor Snape.
Seth Nelson:
Where the court ... Okay. Courtney, remember-
Courtney Bowes:
Yeah.
Seth Nelson:
... We're dealing with Pete. He's not a lawyer, so whenever we say the court, Pete, we just mean the judge, but as the lawyers, we have to treat the lawyers with a lot of respect, and so we always ... We don't even refer to them as Judge. It's either Your Honor or The Court.
Pete Wright:
"Please the Court. Please the Court."
Seth Nelson:
"May it please the Court."
Courtney Bowes:
"Please the court."
Seth Nelson:
Well, done, Pete. Winner, winner, chicken dinner.
Pete Wright:
Oh, goodness. Welcome to season two, everybody. I just got one right.
Seth Nelson:
Courtney.
Courtney Bowes:
Yes.
Seth Nelson:
When we're explaining this to Pete and to all our listeners out there, when would someone use a guardian ad litem? Because you're there on behalf of the children. You're not on behalf of the dad, or the mom, or one parent or the other parent.
Courtney Bowes:
Right.
Seth Nelson:
Right. You're the children's voice, so to speak. Is that right?
Courtney Bowes:
That's exactly right. I'm the children's voice. A lot of times, in most ... Let's call it a divorce case. In most divorces, we hear mom's voice a lot, from mom and her attorney, and we hear dad's voice a lot, from dad and his attorney, but you never really hear the kids' voices. You hear what mom and dad think the kids' voices are saying, but you don't actually hear the voices.
Courtney Bowes:
What the guardian is able to do is talk with the kids, talk with other family members, friends, professionals that have interacted and worked with the kids, and then report to the court what all these people say, on behalf of the kids. That's how the kids can get their voices heard in court.
Seth Nelson:
Just to make it even more complicated, Pete, is when Courtney's talking about, well, talking to school teachers, or friends, or other people, we call those collaterals. Those are other people. They're collaterals, so put that in your potion.
Pete Wright:
Do you even hear yourself sometimes?
Seth Nelson:
I do.
Pete Wright:
Just making stuff up on the fly. Look, my question is this, and I don't know if you want to get into all of this now or if there's more detail to come later, but I'm sitting here as the position of a parent thinking ... Let's just say, it's hard not to hear this without saying, "Okay. I'm relinquishing part of my voice as a parent to the guardian ad litem to then be the voice channeling my children in court." Does that make sense? Am I giving something up, as a parent, just because I'm in this process?
Courtney Bowes:
I don't think that you're giving up your voice. What the guardian is able to do is bring information into court that otherwise wouldn't be admissible. Ooh, here's another word.
Seth Nelson:
Another one, Pete.
Pete Wright:
Oh, okay. I think I definitely heard that one before.
Courtney Bowes:
Because of that rule of hearsay. I bet that one's come up before. Because of the rule of hearsay, a lot of information cannot come into court during a hearing or a trail, so when a guardian is appointed, the vast majority of the time, the parties, the parents waive the hearsay rule.
Seth Nelson:
All right, Pete. You ready for me to break that down for you?
Pete Wright:
Could you please break that down for me?
Seth Nelson:
I know. You're like, "I need a drink already."
Pete Wright:
Allow me to serve as a vessel for everyone listening to the show right now.
Seth Nelson:
Okay.
Pete Wright:
Please, help me.
Seth Nelson:
To answer your question about, "Do you give up control?" That's a great question. Like most lawyers, the answer is, it depends. One part would be, well, if you don't want to have the judge hear what your kids are going to say, then you might be giving up some control, because now they're going to have an avenue, through the guardian, to talk on their behalf. Now, if you're the parent, is like, "Hey, my kids are saying all this bad stuff about dad. Dad does this, dad does that. This is what dad says. This is how he treats us."
Seth Nelson:
If you're the mom and you're sitting in court, and your lawyer says, "What did the children say about what happened at dad's?" The lawyer's going to say, "Objection. Hearsay." Because what that is asking ... I'm going to say a very legal definition, and then I'm going to explain it. Hearsay is an out of court statement. That's easy. That's something that the kids said out of the courtroom.
Pete Wright:
Yeah. At home, wherever.
Seth Nelson:
Right. Wherever.
Pete Wright:
Right.
Seth Nelson:
Offered in court, here comes the tricky part, to prove the truth of the matter asserted. Here it is. Dad says ... "My kids say that their dad hits them." Now, when you say that, you're trying to prove to the court that dad really hits them.
Pete Wright:
Okay.
Seth Nelson:
Okay? You're not allowed to do that, because that's what the kids said, and you're hearing it, and now you're saying it in court.
Pete Wright:
When you say "you," you're in this case, let's say, mom-
Seth Nelson:
I'm the mom in this case, right.
Pete Wright:
You're defending mom.
Seth Nelson:
Right, right.
Pete Wright:
She can't do that. That's the hearsay rule.
Seth Nelson:
She cannot say, "My kids say that dad hits them."
Pete Wright:
Okay.
Seth Nelson:
"I want you, Judge, to believe that dad hits them."
Pete Wright:
Yeah.
Seth Nelson:
Okay? Because that's for the truth of the matter asserted. I'm going to distinguish that for the minute. If they say, "Well, I'm saying that dad hits them." Then they say, "Oh, objection. Hearsay." The lawyer on the other side thinks he's brilliant. The other lawyer says, "No, Judge. I'm not offering it to prove that dad really hits them. I'm offering it to tell you why I think my children are afraid of dad." That's a whole different deal.
Pete Wright:
Right.
Seth Nelson:
Right?
Pete Wright:
Right, right.
Seth Nelson:
It's not necessarily true. It's I'm telling you, "That's what they're saying, and I think they're afraid of him because they say these things. Not that it's true," so that's like a little workaround, so to speak. Okay?
Pete Wright:
Okay.
Seth Nelson:
When Courtney gets involved, she's allowed to go talk to the kids. Courtney, as the guardian, the hearsay rule is suspended and she can say, "Yeah, the kids said, Judge, that dad hits them."
Pete Wright:
That somehow, because it comes from you-
Seth Nelson:
The guardian.
Pete Wright:
... it is somehow vetted. Yeah, the guardian. It's somehow protected against the hearsay rule, and the judge will actually listen to you.
Courtney Bowes:
Right. Mom and dad have to waive the hearsay rule, so they stipulate that there's no hearsay for when I come in and testify. I can say that the kids told me something, or the teacher told me something, or the children's therapist told me something, and none of those people are in court. I'm reporting it to the judge on their behalf.
Seth Nelson:
Or, it could be, Pete, I review the kids' report cards, and this is what their grades are. Because, technically, that is a statement of how the kids are doing in school, that report card.
Pete Wright:
Sure.
Seth Nelson:
Courtney's not bringing that into court. She's just saying, "I reviewed them, Judge."
Courtney Bowes:
Mm-hmm (affirmative).
Pete Wright:
Wait. Report cards though, Courtney's the only one who can talk about those statements? Those are just like bank statements, right?
Seth Nelson:
You can bring those in, and you have all these exceptions to the hearsay rule, which we're not getting into today, but that's a very good point. It's like bank statements. Now, here's the other key. There's a lot of times, like if you have an expert witness, an expert can rely on hearsay, so this isn't a foreign concept when you're in a trial, but it is a foreign concept to parents when they're like, "Wait a minute. Are you telling me anything my kid says to Courtney, Courtney can say that in court?" The answer's yes.
Courtney Bowes:
Mm-hmm (affirmative).
Pete Wright:
Okay. I have another question. One, Courtney, this is a bit of an aside. Are the kids ever in court with you, or are you just representing them and you bring what they say? Is there ever a circumstance where the kids-
Courtney Bowes:
There are circumstances where the kids come, but the vast majority of the time, if I'm involved the kids do not come. The only times that I've had cases where the kids have come in, the kids have been older teenagers, and very specific circumstances. Otherwise, I go in on the children's behalf.
Seth Nelson:
Pete, just like we always say, and especially when we get into these details about hearsay or what a guardian ad litem does, or if the parent have to waive hearsay, Courtney's talking about in Florida, mainly in Hillsborough County, where she does most of her work, so please, everyone out there, as I always say every show, and I'm sorry to repeat myself.
Seth Nelson:
Check with your local attorney. Make sure they're licensed in that jurisdiction, and check that jurisdiction on how they handle these types of issues. These general concepts about what a guardian ad litem does should be fairly standard across the whole wide world here.
Pete Wright:
For those listening, you should actually see if you can get one of Seth's business cards. It actually says "Seth Nelson, Esquire. Check your local jurisdiction," and that's it.
Seth Nelson:
That's it.
Pete Wright:
That's all it says.
Seth Nelson:
End of story.
Pete Wright:
Okay. My next question, and this is the thing that I've actually been noodling over since that really great Hogwarts quip I made a few minutes ago, is the hearsay rule, as it pertains to other people, not the parents. Let's talk about doctors, and therapists, and other people. Is this all contained in your scope of work when advocating for the kids? It's a scope of work question, right? Like on a typical case, how far do you get to go in representing or protecting kids' voices?
Courtney Bowes:
It depends on the case and it depends on the issues. I've had some cases with some very serious issues, where I'm talking with the kids' pediatricians, and specialists, and therapists, and talking with numerous professionals. I have other cases where I talk to mom, and dad, and the kids, and that's it. It really just depends on the issue that each particular family is having, and how serious the accusations or allegations might be. We take it on a case-by-case basis.
Seth Nelson:
To put a little meat on that bone, Pete, we've all, unfortunately in family law, we might deal with something where one parent is saying the other parent is physically abusing the child.
Pete Wright:
Sure.
Seth Nelson:
Then, you're going to have to go review medical records, talk to the doctor, see what's happening there. It could be a parent doesn't do any of the homework. Let's say it's pretty easy to tell you have a week on, week off schedule, so the kid goes back one week with one parent, the other week the other parent.
Seth Nelson:
Courtney might go review all the homework and the school records and be like, "Oh, yeah. With dad, constantly late on dad's mornings, when he's supposed to be dropping off. The homework's not getting done, and the spelling test at the end of the week is a C or a D, but with mom, it's an A or a B, and the kid's always on time."
Courtney Bowes:
Mm-hmm (affirmative).
Pete Wright:
Okay.
Seth Nelson:
All that type of stuff. Where these issues arise, it's not like Courtney has a list and says, "Is there any domestic violence?" It's parents are going to tell you. They've talked to their lawyer, they've decided they need a guardian ad litem, and then Courtney does an interview, "Hey, what's going on? What are your concerns? What's the other parent doing that's going well? What do we need to work on?" That's where these issues come out.
Pete Wright:
Okay. You said something there that I feel like triggered a question I hadn't thought of. At what point do parents come to a decision that they need a guardian ad litem in-between them and for their kids? That seems like it might be a hard decision to come to.
Courtney Bowes:
I think it depends on the case, and the issues, and different cases, I'm brought in at different times. Some cases have really serious allegations right at the beginning of the case. Maybe it's one parent has a substance abuse issue, and the other parent is very concerned about the children's safety, being with that parent, but they don't have proof to bring in front of the judge in order to prevail on getting some safety measures put into place. Maybe there's no DUI, there's no arrest. There's nothing but he said, she said.
Courtney Bowes:
Other cases, maybe I'm brought in once the parties have been in the process for a while, after a separation. Maybe like what Seth's example was a few minutes ago. The homework's not getting done with one parent, or they're bringing the children to school late. Or maybe the children are objecting to going to one parent's house after the parties separate, and they're having distress, from a mental health perspective. Those are, maybe I'm brought in later on down the road. Sometimes, I'm-
Pete Wright:
Really, it could be anyone in the process who indicates, "We need Courtney here." One parent, the other parent.
Seth Nelson:
Absolutely. The parent might raise it to the lawyer.
Pete Wright:
The court.
Courtney Bowes:
Yes.
Seth Nelson:
Yup.
Pete Wright:
Right.
Seth Nelson:
Yup.
Courtney Bowes:
Mm-hmm (affirmative).
Seth Nelson:
Yeah. Very good, Pete. That was impressive. The court. You said that like-
Pete Wright:
Do you see what that did?
Seth Nelson:
Yeah. It was impressive.
Pete Wright:
Just a minute ago, Courtney said maybe one of the kids objected to going over to dad's house. My instinct was to say, "Overruled." I just want you to know I listen when you say things. I listen.
Seth Nelson:
You're an excellent listener.
Pete Wright:
I may use them incorrectly, but I listen.
Seth Nelson:
The interesting thing, and why I'm so thrilled to have Courtney on the Toaster here, is because she's so amazing at what she does. What I mean by that is, not only is she very smart, but she can connect to kids very quickly, within one or two visits, and where the kids will open up. Now, it's different if it's a teenage girl verse a five-year-old little boy.
Seth Nelson:
If you're talking to a five-year-old little boy, and let's say mom's concerned that dad's drinking all time, the five-year-old might not have the words to say, "Yeah. Dad's cracking beers all night," but what Courtney might get out of that child in just talking to him, is like, "Well, what's your bedtime routine?" Then the kid might say, "Well, I take a tubby, and my dad gets it ready for me, but then I just do it on my own. Then I just put on PJs and go to bed." "Well, where's dad when you do that?"
Pete Wright:
"Where's dad?"
Seth Nelson:
Right.
Pete Wright:
"Well, I took him a six-pack, and then he went to sleep on the easy chair."
Courtney Bowes:
Right. Or, "Dad was already asleep." You know?
Pete Wright:
Yeah, right.
Seth Nelson:
Right.
Pete Wright:
Okay. All right.
Seth Nelson:
There's that. To give an example of how Courtney does her job, I think, helps people listening to say, "Okay. What actually happens? How does a guardian do this?"
Pete Wright:
You have access to both parents. You're talking to everybody. You have to somehow rationalize or sort of normalize those two positions against one another? I use the word "advocate" for kids. Is that a word you would use, or is it just representing the kids? How do you talk about it?
Courtney Bowes:
I don't look at it as representing the kids. I'm not their attorney ad litem, I'm the guardian ad litem, so I'm not representing the kids, and I'm not necessarily advocating for the kids. I think that might be a misconception. I think the better way to describe it is I'm doing an investigation, and then I'm making recommendations to the parents, and their attorneys, and then to the judge if it becomes necessary.
Seth Nelson:
That recommendation is what Courtney thinks is best for these children.
Courtney Bowes:
Yes.
Pete Wright:
Okay.
Courtney Bowes:
I'm not a decision maker in the case.
Pete Wright:
Just a representative of the facts and observations as you've collected them.
Courtney Bowes:
Right. I'm reporting. I'm a reporter.
Pete Wright:
How much does the child's position ... Or let's say you've got somebody who's 13 and has a strong opinion on what they want to have happen next?
Seth Nelson:
13-year-olds have strong opinions?
Pete Wright:
I don't know anything about that. Right. How much of that strong opinion gets filtered through you? Do they have a voice in this, or how much do you take back to the case?
Courtney Bowes:
I think it depends on the circumstances. Again, it's on a case basis.
Pete Wright:
You guys are nonsense, both of you.
Seth Nelson:
I know.
Pete Wright:
This case-by-case basis.
Seth Nelson:
Depends, depends, depends.
Pete Wright:
Yeah, right.
Courtney Bowes:
Certainly, a 13-year-old-
Seth Nelson:
It's like this is an elderly commercial for Depends. It's just nonstop. Maybe that'll be our first sponsor, Pete, Depends.
Pete Wright:
Yeah. Go for it.
Seth Nelson:
Go ahead, Courtney. Sorry.
Courtney Bowes:
No, it's okay. I think a 13-year-old's opinions and feelings on things is probably going to weigh a little more heavily than maybe a five-year-old's opinions on things, but it depends on what the circumstances are. If it's a safety issue, versus if it's a relocation issue, you're going to-
Seth Nelson:
By relocation, Pete, we mean if you're going to move from one ... Like more than 50 miles let's say, or if you're going to move ... But one parents wants to move up to Washington, D.C., and the other parent's like, "No, we need the children to stay in Tampa. You can move, but I don't want the kids to go." That's a relocation, which those cases are very difficult because they don't settle. It's not like we're all going to settle and say, "Oh, we're going to move to North Carolina." It's either one or the other.
Pete Wright:
Right.
Seth Nelson:
I think to Courtney's point about "it depends" is, Courtney's evaluating not just the age of the child, but their maturity, their reasoning for saying what they want. It's not, "Hey, I want to do this. I want to stay with mom." "Why do you want to stay to mom? What's leading you to that conclusion?" That's the type of stuff that Courtney draws out of kids really well. Sometimes, that child might say something that no one else is talking about. They might have their point of view and Courtney's like, "I got it. I see what's happening here."
Seth Nelson:
A cautionary tale, sometimes be careful what you wish for, from a litigation perspective. If you have anyone saying, "I want a guardian ad litem. I want a guardian ad litem. I want a guardian ad litem," because that parent wants them to talk bad about the other parent, and Courtney gets a relationship with that kid, and then all that comes out is, "Yeah, dad's drinking, but let me tell you, mom's bashing dad every time she gets."
Courtney Bowes:
Mm-hmm (affirmative).
Seth Nelson:
It's not like they're just opening up to Courtney about one parent.
Courtney Bowes:
Right. It's rarely a one-way street.
Pete Wright:
Yeah. Would they really be in this position in the first place? You got to wonder. Because I think the legal term for that is takes two to tango rule.
Seth Nelson:
That is actually the 11th Amendment to the United States Constitution, Pete.
Pete Wright:
I know.
Seth Nelson:
That is well done.
Pete Wright:
I know, Seth. I know. Please. You think you need to take me to school on the 11th? Courtney, how do you do your job? It sounds like, from what you're talking about, you see the worst in people through the eyes of their kids.
Courtney Bowes:
Yes.
Pete Wright:
How do you keep that straight in your head? Why would they bring you in if it was sunshine and roses?
Courtney Bowes:
I wish they brought me in on sunshine and roses.
Pete Wright:
Right? If your only choice was, "Do you get the pony or not?" That's, you know.
Courtney Bowes:
Right. I don't get those cases.
Pete Wright:
How do you do this? How did you end up here?
Courtney Bowes:
Well, I do it and keep doing it because these kids do need their voices heard, and the circumstances in which they find themselves, through no fault of their own, need a voice. My hope is that by the time I'm done being involved with the family, that they're in a better place than they were when I started. That's how I keep going back and doing it because, hopefully, they're in a better situation at the end, and I'm making a change for the better.
Courtney Bowes:
How did I get started? I had a judge call me up a couple years ago, probably what? Five, six years ago, and ask me if I would take a guardian case pro bono. You don't say no to a judge when they call you up and ask you to take a case pro bono.
Seth Nelson:
That's to Courtney's credit, to have a judge say, "Hey, I value your opinion. I've seen you in court. I've seen you in other legal organizations, and I really need some help trying to figure out what's going on in this case to protect these kids and do what's best for them," so that speaks volumes.
Courtney Bowes:
Thanks.
Seth Nelson:
Courtney, as you know, this show really is about saving your relationships. One thing that comes to mind that I think we should focus on, and we'd love to get your input is, you think you need a guardian ad litem. You know that person's going to talk to your children.
Courtney Bowes:
Mm-hmm (affirmative).
Seth Nelson:
You know, ultimately, though you're hoping they're going to just say bad things about the other parent, so to speak, but that puts that kid in a really tough position. Maybe they don't want to say bad things about either parent, or they want to please both parents, so one time they'll say one thing, one time they'll say the other.
Seth Nelson:
How do you, as a parent, prepare your child and save that parent-child relationship to let them know that, "You can speak freely to the guardian." Because, ultimately, if that parent's pressuring the child, like, "Say bad stuff about dad," and they're planting that seed, I think that those parents are running a big risk. Since we are about saving your relationships, this just seems very dangerous, on a breakdown of a parent-child relationship.
Courtney Bowes:
Absolutely. After you do this for a long time, you definitely can pick up on cases where kids are being coached on what they should say. Those pretty much scream out coaching, when it happens. What I've been encouraging parents to say to their kids, before I meet with their kids, is that, "Mom and dad, we both want you to talk with Courtney."
Courtney Bowes:
"We both think it's important for you to have a voice, and we both brought Courtney in for you to talk to and to have the voice," and encourage them to be truthful, and to speak their truths to what's going on, and that no matter what they say that, "Mom and dad love you, no matter what." I think that's the best way a parent can handle it. Not every parent necessarily says that, but that's what I encourage parents to say.
Pete Wright:
Seth, let's just say that you and Courtney are not working together. That it's some other guardian ad litem, and maybe one that you don't want to deal with. They come in and they bring this report that is unfavorable to your client.
Seth Nelson:
Right, right.
Pete Wright:
What do you do in that case?
Courtney Bowes:
Settle.
Seth Nelson:
Settle the case. Right. That's a common thought process, is that when you have a guardian involved, whether you wanted it, the other side wanted, and you objected and the court ordered it. Or the court, on its own, said, "We're getting a guardian involved," which the court has the power to do. Check your local jurisdiction. Always Pete, always.
Seth Nelson:
Then, it is a very common thing that judges will just do whatever the guardian says. When a report comes back and Courtney makes a recommendation that this is what the parenting plan should be, the visitation, the custody arrangement, or a child should play soccer, or do this extracurricular, or, "This is how we should do things," it's very common for people then to settle their case within those parameters, or pretty close.
Seth Nelson:
Let's say I have a client that says, "No. I'm not settling. I think Courtney got it wrong." Or, Courtney never is wrong, so we'll pick the other guardian, as you said. What do I do as a lawyer? I will attack the assumptions. In everything report, in everything we do, there's always assumptions.
Seth Nelson:
A basic example, which is not an assumption I would attack, but it's a great example to get the concept. I would ask Courtney, "Did you review the children's report cards?" "Yes." "How were their grades on the week ..." Let's say I represent dad, "On the week that they're with dad?" "They were horrible. They were Fs, they were Ds. Homework wasn't turned in." "Courtney, what if any assumption do you have in making that determination?" She's making an assumption that that report card was an accurate report card.
Pete Wright:
Or that the assignments that were turned in that week were actually assignments that were done that week.
Seth Nelson:
Exactly. There's all-
Pete Wright:
I could be a lawyer.
Seth Nelson:
You're signing-up, brother. Let's go. Because I really need to be a podcast host, because that's going to turn out well.
Pete Wright:
Right.
Seth Nelson:
There's always assumptions like that, and so when I go to quote, unquote, attack a report, here are the general areas of assumptions are what Courtney does. Courtney, if you disagree with any of this, let me know.
Courtney Bowes:
Mm-hmm (affirmative).
Seth Nelson:
Courtney gathers information, so I can attack how she gathered it. Did she spend 10 minutes with this child or did she spend an hour and a half? How many visits? Did she get a real flavor? Did she get a good picture? How did she gather the information? Then she records the information somehow for her notes, so did she not write those notes from that meeting with that child until three weeks later so maybe her notes are now flawed? Or did she do it right when she got in the car? Because you don't take notes when you're talking to a kid. Right?
Courtney Bowes:
Well, sometimes you do.
Seth Nelson:
Oh, there you go. Courtney might.
Courtney Bowes:
Sometimes you do.
Seth Nelson:
She's doing it right away. Or, so then you can attack the notes, or her proper recording of those issues. Then she takes all of that and she does an analysis to come to a conclusion, so you can attack the analysis. As a lawyer, you never really want to be in the position where the report, in quotes, goes against your client. I've gone to court, not just against a guardian before. It was actually a child custody evaluator, which is someone with a PhD that ran psychological testing on the parents, and did everything Courtney does, but even with this added element, and I beat the report.
Seth Nelson:
Even though the doctor in that case recommended one parenting plan, and my client wanted another one, at trial, the judge did not just go with what the doctor said. The judge is not required just to do what Courtney said, or the other guardian that we're talking about. They could have a bad day. They could get it wrong, or the judge just might see it differently. Because the guardian's job is to do all that investigation, collect the information, do the analysis, record it. Do the analysis and write the report, and that's their job. It's not to advocate.
Seth Nelson:
When Courtney does that, she does a good job on that, it shouldn't really matter to Courtney, though we're human beings, what that judge rules, because Courtney's done her job. If the judge hears from 30 other witnesses that maybe Courtney didn't talk to, because they weren't asked to talk to, and they tell a different story, and the judge believes that and says, "Well, no one asked Courtney to talk to these 30 other people that just went in there and bashed mom," so Courtney only controls what she has control of. Courtney, do you disagree with any of that, or am I just brilliant today?
Courtney Bowes:
I think you're brilliant today, Seth.
Seth Nelson:
Just today though.
Courtney Bowes:
Just today.
Seth Nelson:
For a very brief moment.
Pete Wright:
Yeah, that's right. Today does come to an end. That actually gets to another question that we were noodling over, which is how heavily does the judge weigh the report of the guardian ad litem? It seems like something that is ... It sounds like you get a chance to attack or defend the report.
Seth Nelson:
Yeah, you do. Courtney, correct me if I'm wrong. Have you heard this in court from a judge, "I'm not pre-judging the case, but I can tell you, in my five years in family law, I've only not agreed with the guardian three times"?
Courtney Bowes:
I've heard that. I have had a judge not agree with my recommendation. It happened once.
Pete Wright:
Once?
Courtney Bowes:
Mm-hmm (affirmative), yeah.
Pete Wright:
Once.
Seth Nelson:
See how she's a little annoyed by it to this day.
Courtney Bowes:
I am.
Seth Nelson:
Could you hear that?
Pete Wright:
Yeah, you could kind of tell.
Courtney Bowes:
Yeah.
Pete Wright:
Like, man, that was-
Courtney Bowes:
I was surprised.
Pete Wright:
... Because she gave us the real side-eye for even asking the question. Sorry to bring that up, Courtney.
Courtney Bowes:
No, it's okay. I was brought in on one issue. It was a single issue, and I recommended one way, and the judge ordered a different way. There were two options, A or B.
Pete Wright:
Interesting, yeah.
Courtney Bowes:
Otherwise, I think a lot of times, judges will take the recommendation and maybe tweak pieces of it. They'll maybe adopt big chunks, but then pieces they'll tweak.
Seth Nelson:
There's no real winning in family law.
Courtney Bowes:
No.
Seth Nelson:
So let's-
Pete Wright:
Everybody, in some way, loses a little bit.
Courtney Bowes:
Everyone loses.
Seth Nelson:
Absolutely.
Pete Wright:
A little bit or a lot.
Seth Nelson:
Yeah.
Courtney Bowes:
Yeah.
Seth Nelson:
Yeah.
Pete Wright:
Maybe this is more for Seth. Is there a circumstance in which you, as an attorney, would tell your client, "You need to change your behavior so that we can avoid bringing in an guardian ad litem They're going to uncover things that may be unfavorable, that may be ... I mean, we just need to avoid that process."
Seth Nelson:
Absolutely. I'll give you a perfect example, which has been very successful, and I think a lot of good lawyers use this. I'm sure Courtney does when she is representing clients. A frequent reason to have a guardian is when you have a parent who's suffering from alcoholism and there's substance abuse. What I frequently recommend, and this might sound counterintuitive at first, Pete, is to tell that client, "Do you believe you're an alcoholic?" Now, it's all attorney-client privilege. I'm talking to them.
Seth Nelson:
If I get an answer that I think is, I believe they're an alcoholic by the way they answer the question, and I've been doing this a long time, I'll tell the client, "Here's what I think we should do. It's up to you. I give advice and counsel. It's your decision to take it or not. I think they're going to get a guardian ad litem, and that guardian ad litem's going to look into this issue. That guardian ad litem is there for the kids, and it's on their behalf, and so they're looking to protect your children because that's their job, so a tie does not go to you, it goes to the kids."
Pete Wright:
Yeah. In that case, they're protecting the kids from you.
Seth Nelson:
Right. "I recommend that you start voluntarily getting random alcohol test, and I want you to continue that on a weekly basis or whatever the random drug tester recommends. Then, by the time we get to court, if you've passed them all for the last three months or six months, then we go and you say, 'Well, sir, did you get an alcohol test?' 'Yes.' 'Why?' 'I knew this was going to be an issue that my wife was going to raise, and I wanted to ... Though I'm not an alcoholic, I appreciate that she's concerned about that. Therefore, I wanted to get a test to help alleviate her concerns. By the way, here's six months of random alcohol tests and Judge, I don't think ...'"
Seth Nelson:
Now, I'm saying, "Judge, I don't think we need a guardian ad litem. Here's six months of tests." Now, the guardian doesn't get in there on alcohol and find some other stuff, because no one talked about the cocaine.
Courtney Bowes:
Isn't that the truth?
Pete Wright:
Oh my goodness.
Seth Nelson:
Yeah.
Pete Wright:
Here I am thinking, after six months, I'm going to be clean and sober, but I eat about 70 Butterfingers a day, and you guys go straight to the coke.
Courtney Bowes:
It's always the coke.
Pete Wright:
It's always the coke. Now we know what's on Courtney's business card. "Courtney Bowes," quote, "It's always the coke."
Seth Nelson:
But that's a reason to-
Pete Wright:
Yeah, yup.
Seth Nelson:
You know, so sometimes you don't want people, like you say, noodling around in there.
Pete Wright:
Yeah, yeah. This has been incredibly illuminating. Courtney, if there's one part of your job that you feel like we have not litigated on this podcast for you, what would you like to leave people with in terms of understanding what you do as a guardian ad litem?
Courtney Bowes:
Well, I think we've covered a lot of it, for sure. I think it's important just for people to remember that the guardian isn't being brought in to take sides with either parent, or to be an advocate for either parent. The guardian's there for the kids. At the end of the day, that's what the appointment's about. Also, keep in mind that if you do have a guardian and they are preparing a report, even if the report is making recommendations in favor of one parent, that parent's not going to like what the report says, because the guardian has to dig into everything, and nobody's perfect. We're all human.
Courtney Bowes:
Typically, the reports are going to be unflattering for both parents. It's just the way that the recommendations may fall. When a guardian reaches out, prior to preparing the report, to make some informal recommendations or suggestions to the attorneys for settlement purposes, they should really consider it before the report gets drafted.
Pete Wright:
Before the hammer falls.
Courtney Bowes:
Yeah.
Pete Wright:
Wow.
Seth Nelson:
Pete, do you really want to read what a third-party thinks about your parenting?
Courtney Bowes:
Mm-hmm (negative).
Pete Wright:
No. I do not.
Courtney Bowes:
Do you want to pay that person to do it?
Pete Wright:
Oh, god. Oh, we didn't even talk about. Who does pay for you?
Courtney Bowes:
The parents.
Pete Wright:
The parents pay for you.
Courtney Bowes:
Yeah.
Seth Nelson:
Sometimes, the lawyers will argue over what percentage one parent should pay verse the other, based upon a host of factors. How much money they have, incomes, or what we think the problem is.
Pete Wright:
Wow.
Seth Nelson:
Yeah.
Courtney Bowes:
Yeah.
Pete Wright:
This has been incredibly illuminating.
Seth Nelson:
It can sound like lawyers might not want this because it makes everything more complicated but I'll tell you, a lot of lawyers will be like, "Let's get a guardian." I can't go depose or interview your child. If you're telling me these issues are, the only way for me to uncover those and bring them before the court is a guardian. I can file a motion to have a judge talk to a child, but that's going to be-
Pete Wright:
Are the judges really the most equipped party to interview a child?
Seth Nelson:
I'll answer it, Courtney. I can see the look on your face.
Pete Wright:
I'm watching Courtney not wanting to answer that question.
Seth Nelson:
Yeah. Did you see that?
Pete Wright:
Wow. I did not know that was going to be a conversation grenade.
Seth Nelson:
That is a loaded question. Here's the deal. It's very difficult for a judge, who is skilled at asking questions and skilled at connecting with people, to interview children because they're coming to a courtroom or into the judge's office. They're always going to have a deputy or a bailiff there with them so the judge can't be accused of anything wrong happening. It may or may not be recorded by a court reporter.
Seth Nelson:
It's just a bad place for a child to be, and now you're asking this judge, who's doing the best they can on behalf of justice and trying to figure out what's happening to make the best decision for this child, having to get answers in that scenario. It's a lot better when Courtney can go to their home, or go see them at a swim practice, or in their own environment. It is a foreign environment to our clients, to the parents.
Seth Nelson:
Now, take a 13-year-old having to walk in, like going through airport security, but it's a courthouse, and they're going through security. Then they come up and they're trying to dress nicely, and maybe they're not really used to having to wear a collared shirt, but they are because they're going to go see a ... It's just not a great place for-
Pete Wright:
Everything's terrible in that situation.
Seth Nelson:
Everything. Right. The judge is doing the best they can. Now, there's some judges not talking to kids because they don't think, probably rightfully so, anything they're going to get out of that kid is worth putting the kid through that.
Pete Wright:
Right.
Courtney Bowes:
Mm-hmm (affirmative).
Seth Nelson:
See, Courtney. I covered for you there.
Courtney Bowes:
Thanks.
Pete Wright:
That was great.
Courtney Bowes:
That was good, Seth.
Pete Wright:
Yeah. You're a good team. All right, you guys. Hey, this has been fantastic. Thank you. Super illuminating. Courtney, thank you so much for teaching us a little bit about what you do, and how you do it, and why you do it.
Pete Wright:
I hope this is useful for everybody out there listening. Make sure, as we're cruising through our season two of How to Split a Toaster, if your podcast app has a directory that allows you to leave reviews, we sure would love you to jump in there and leave us that five star review and nice comments. Frankly, if it's not five stars or a nice comment, we're less interested.
Seth Nelson:
You can email me. I would like to hear those because I'm always trying to improve.
Pete Wright:
Right. We'll hear those. Right. Thank you all very much. On behalf of Courtney Bowes and Seth Nelson, I'm Pete Wright. We'll catch you next week right here on How to Split a Toaster, a divorce podcast about saving your relationships.
Speaker 4:
Seth Nelson is an attorney with Nelson Koster Family Law and Mediation, with offices in Tampa, Florida. While we may be discussing family law topics, How to Split a Toaster is not intended to nor is it providing legal advice. Every situation is different. If you have specific questions regarding your situation, please seek your own legal counsel with an attorney licensed to practice law in your jurisdiction. Pete Wright is not an attorney or employee of Nelson Koster. Seth Nelson is licensed to practice law in Florida.
This transcript was exported on Jan 18, 2021 - view latest version here.
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