Rule 7.Representation by Guardians Ad Litem and Attorneys of

REPORTER'S NOTES--2016 AMENDMENT: The title of V.R.F.P. 7 and V.R.F.P. 7(d)(1)(A) and (2)(A) are amended for conformity with the simultaneous abrogation of former V.R.F.P. 4 and promulgation of restyled and reorganized V.R.F.P. 4.0-4.3. See Reporter's Notes to those rules.

REPORTER'S NOTES--2014 AMENDMENT: Rule 7, applicable to appointment of guardians ad litem (GALs) and attorneys for minors in proceedings under Rules 4 and 9, is replaced by a revised version intended to address issues that have arisen under the original rule. The structure of the rule as adopted in 1991 and amended in 2006 was based on the provisions of Rule 6 (and subsequently adopted Rule 6.1) applicable to GALs and attorneys in juvenile and competency or other protective proceedings. The only differences reflected the emphasis in Rule 7 on best interests of the child, rather than the state's adversarial interest. See Reporter's Notes to Rule 7. Subsequent experience has revealed a number of other important differences: Proceedings under Rules 6 and 6.1 involve different issues and there is more support, including the involvement of state's attorneys and victims' advocates. Also in those proceedings, volunteer GALs are generally appointed from the Vermont GAL Program, a program of the Family Division that provides training and oversight for GALs. There is insufficient funding to provide training for GALs for most proceedings covered by Rule 7, which are very different from those under Rules 6 and 6.1. Accordingly, the revised rule describes the purposes and role of the GAL appointed under Rule 7 in narrower terms and provides for specific direction as to the GAL's responsibilities. For clarity, the provisions of former Rule 7(e), applicable to the role of GALs in cases in which a minor child is called as a witness, have now been revised and divided between new Rule 7(d), applicable to a child who is a subject of the proceeding, and new Rule 7.1, applicable to a child not a subject of the proceedings. The title of the rule is changed to reflect the 2006 amendment of former Rule 7 making the rule applicable to abuse-prevention proceedings under Rule 9, as well as to proceedings under Rule 4 and making clear that the rule applies to a child who is a subject of the proceedings. Rule 7(a) is carried over from former Rule 7(a) with the addition of language making clear that the rule applies to proceedings in which the child is a subject of the proceedings. New Rule 7.1, adopted simultaneously, carries forward in modified form the provisions of former Rule 7(e)(2) applying to testimony of a child who is not a subject of the proceedings. Rule 7(b)--Rule 7(c) in the former rule--adds parent-child contact issues to the matters in Rule 4 and Rule 9 proceedings in which the court may appoint a GAL. Language is added to the subdivision to make clear that the GAL's role is to “assist the child in understanding the process” and to “provide the parties and their attorneys with information that can assist the parties in reaching an outcome that is in the best interest of the child. ” This provision replaces the language of former subdivision (d), taken from Rule 6(e)(1), that described the GAL's role as to “act as an independent parental advisor and advocate whose goal shall be to safeguard the child's best interest.” Under new Rule 7, the GAL's role is not to advocate, but to assist the child in understanding the process and to provide information that will assist the parties in reaching a satisfactory outcome. In Rule 7(c)--Rule 7(b) in the former rule--“attorney” is substituted for “counsel” for consistency with the statute and other provisions of the former and present rules. The new rule provides that in a case where issues concerning the child are contested and the GAL, if asked under Rule 7(e)(6) to make a recommendation concerning appointment of an attorney, has recommended such an appointment, the court is to make the appointment if resources are sufficient and undue delay will not result. Consistent with 15 V.S.A. § 594(a) and the former rule, “in appropriate circumstances,” the court has discretion to appoint an attorney for a child without a request from the GAL. Rule 7(d) is derived from former Rule 7(e)(1). Paragraph (d)(1) makes clear that if a party seeks to call a child who is a subject of the proceedings, the court must hold a hearing to determine whether to allow the testimony. In an action for annulment or divorce under Rule 4, if a GAL and an attorney for the child have not been appointed pursuant to subdivisions (b) and (c), subparagraph (1)(A) requires the court to appoint a GAL and, as required by 15 V.S.A. § 594(b), an attorney. If the proceeding is one for abuse prevention under Rule 9, subparagraph (1)(B) gives the court discretion to appoint a guardian ad litem, an attorney, or both for the child. The discretion regarding appointments provided by subparagraph (B) is intended to allow the court to avoid delay and expense when the nature of the issues and the minor's age and level of maturity make an appointment unnecessary and time may be of the essence. Paragraph (d)(2) carries forward from former Rule 7(e)(1) and 15 V.S.A. § 594(b) the findings that the court must make before allowing the testimony. New subparagraphs (d)(2)(A) and (B), however, depart from former Rule 7(e)(1) by replicating for the evidentiary hearing the mandatory and discretionary provisions of new paragraphs (d)(1)(A) and (B) concerning appointment of an attorney or GAL for the child. New subparagraph (C) continues the provision of the former rule allowing the court to impose other appropriate conditions for the hearing. Rule 7(e) sets out a nonexhaustive menu of responsibilities, appropriate to the circumstances, that the court, in the order of appointment, may ask the GAL to undertake with the parties, the child, and others as part of his or her general duties under Rule 7(b). Items (1)-(5) carry forward provisions of the former rule with greater specificity, including, among others, the provision for parental authorization to talk to third parties, such as teachers, health and mental health professionals, and others who may have relevant information. The specific language of the former rule involving the GAL in communications between the child and the child's attorney is not carried forward, though the GAL may be asked to talk to the child about the proceedings and to serve as a contact between the child and the parties. The court may ask the GAL for a recommendation as to whether an attorney should be appointed for the child and may request the GAL to undertake other necessary tasks. Item (7) will provide the opportunity for the court to focus the activities of a GAL appointed under Rule 7(d). Rule 7(f) describes the very limited and specific role of the GAL in court proceedings. The new rule separates and revises provisions included in former Rule 7(d) concerning the role of the GAL in preliminary and evidentiary proceedings, if one has been appointed. Paragraph (1)(A) carries forward for preliminary proceedings the provision of the former rule that either the GAL or the child's attorney may state the child's position. The language of former Rule 7(d) concerning a written report by the GAL is not carried forward, and the GAL is not expected to prepare such a report or submit it to the parties. Instead under paragraph (1)(B), the GAL is to provide a written list of his or her activities in complying with the requests in the order of appointment under Rule 7(e). Paragraph (1)(C) provides that the GAL, if requested by the court, may state his or her views on matters pertinent to the future course of the proceedings, including whether to call the child as a witness under Rule 7(d). The GAL's statement should not address the merits of the proceeding, express any opinion on the merits, or contain any information based on the GAL's out-of-court observations. Although on the record, the statement is only for the guidance of the court and has no evidentiary effect. Under Rule 7(f)(2)(A), the GAL may be present at an evidentiary hearing but may speak on the record only if the child has an attorney and either the parties agree or the court so requests. The GAL's statements are not evidence unless he or she is called and sworn as a witness as provided in paragraph (2)(B). This provision reinforces the holding of Gilbert v. Gilbert, 163 Vt. 549, 664 A.2d 239 (1995), that, whatever the content of the GAL's statements, they may not be considered as evidence. Paragraph (2)(B) makes clear that the GAL may testify only if the child has an attorney and only to provide direct evidence on a contested factual issue for which no other witness is available. Thus, the GAL may not give opinion testimony on the merits of the parental rights and responsibilities or parent child contact issues. As under former Rule 7(d), the court may appoint a replacement for a GAL who is called to testify.

REPORTER'S NOTES--2006 AMENDMENT: Rule 7 is amended to make the rule applicable to relief from abuse proceedings under Rule 9 and to clarify the provisions of Rule 7(e) concerning child witnesses. The primary effect of the amendment of Rule 7(a) is to make clear that the requirements of Rule 7(e) for appointment of attorneys and guardians ad litem for child witnesses are applicable in proceedings under Rule 9. The rule as originally promulgated in 1991 did not include abuse proceedings. See Reporter's Notes to Rule 7. Eastman v. Fisher, No. 2002-442 (entry order, 5/1/03), illustrates the difficulties with the existing rule. Plaintiff in a relief from abuse proceeding sought to call her son, allegedly an abuse victim, to testify. The trial court refused to allow the child to testify without an attorney and guardian ad litem but then denied the plaintiff a continuance that she requested to ensure that both an attorney and a guardian ad litem for the child were present. The Supreme Court expressly noted that Rule 7(e) did not apply to abuse proceedings, so that an attorney and guardian were not required. The Court held, however, that the trial court, having required them, abused its discretion by denying the continuance. The application of Rule 7(e) in relief from abuse cases strikes the balance in favor of obtaining all available evidence and against the obvious need for expeditious proceedings in such cases, while providing ample opportunity for protection of the best interests of a child who is a victim of the abuse. Failing to appoint an attorney or a guardian ad litem in cases where such a child's testimony is necessary to determination of the question of abuse is contrary to the policy behind the abuse prevention statute (15 V.S.A. §§ 1101-1109). The goal of the statute is to conduct “inexpensive and uncomplicated proceedings that allow an abused family member to obtain immediate relief,” while protecting the child's best interests. Rapp v. Dimino, 162 Vt. 1, 4, 643 A.2d 835, 837 (1993). Assigning an attorney and a guardian ad litem supports the best interests of the child. Other states recognize this fact by mandating the assignment of an attorney and/or guardian ad litem to children in any relief from abuse proceedings. See Fla. Stat. Ann. § 914.17; N.H. Rev. Stat. Ann. § 169-C:10. Rules 7(b) and (c) are amended to clarify language concerning applicability of the rule. Rule 7(e) is amended to clarify the application of Rule 7(e) in proceedings under both Rule 4 and Rule 9 by providing separately for a child witness who is the subject of the proceeding and for a child witness who is not so involved. In Davis v. Hunt, 167 Vt. 263, 704 A.2d 1166 (1997), involving testimony of a child whose support and custody were not in issue, the Supreme Court held that the requirements of 15 V.S.A. § 594(b), carried forward in Rule 7(e), that must be met before a child may be called as a witness apply only to a child witness who is the subject of child support and parental rights and responsibilities proceedings. Thus, the statutory requirements did not have to be met, and the trial court had abused its discretion by excluding the proffered testimony on evidentiary grounds. Amended Rule 7(e)(1) makes clear that its requirements of appointment of a guardian ad litem, specific findings concerning the need for the testimony and its effect on the child, and appointment of an attorney apply only to the child witness who is the subject of the proceeding. Under the amended rule, a child will be deemed a subject of the proceeding where its purpose is to determine support or parental rights and responsibilities for the child or where the child is a victim of the abuse alleged. For clarity, Rule 7(e)(2) is added to set forth standards for determining whether the testimony of any other minor child witness should be admitted. Those standards are essentially rules of admissibility applicable to a child witness in any proceeding. As the Court said in Davis v. Hunt, 167 Vt. at 268, 704 A.2d at 1169, the trial court in that case had “discretion to exclude the testimony if it was irrelevant, cumulative, unduly prejudicial, or inadmissible on other grounds,” but erred in excluding the evidence, because in the circumstances it was relevant under V.R.E. 404(b), the witness was competent, the evidence was not cumulative, and there was no other means of obtaining it. The final sentence of the rule allows the trial court to take necessary steps to protect the child, including appointment of an attorney under Rule 7(a) or appointment of a guardian ad litem. The nature of this discretion is such that the court is unlikely to invoke these protections in the case of a minor child who is a casual fact witness and not part of the household or otherwise related to the parties or the situation.

REPORTER'S NOTES: This rule applies to those actions formerly governed by V.R.C.P. 80, now entitled Family Court Rule 4. Note that Rule 9, formerly subdivision (m) of the rule, pertaining to abuse prevention proceedings, is excluded from the operation of the present rule. This rule is similar to Family Court Rule 6 in its structure and intent. The discussion of the roles of attorneys and guardians ad litem in the Reporter's Notes to Rule 6 is, with one major exception, equally applicable to this rule. The one major difference is that Rule 6 governs proceedings in which the state is engaged in an adversary relationship with a child or allegedly incompetent adult. Cases under Rules 4 and 7, such as divorce, are essentially disputes between private individuals. The state has an interest in the proceedings, but the interest is principally to protect the best interests of nonparties--the children. A number of consequences flow from this distinction. In proceedings under Rule 6 assignment of counsel is needed to maintain a proper balance between the state and the individual. A guardian ad litem under Rule 6 assists the attorney in protecting the child or proposed ward's rights and best interests. Under the present rule counsel never is assigned to an adult and generally is not assigned to a child. Under the present rule the guardian ad litem's role is to minimize the harm suffered by the child during the breakup of the family rather than to assist the attorney and the child in making the choices that parties must make in our adversary system. The focus is almost exclusively on best interests rather than on rights. Subdivision (b) of the rule addresses appointment of counsel. The decision to appoint a lawyer for a minor child lies in the discretion of the court. This differs from Rule 6, primarily because in proceedings under Rule 6 the state is involved as a party potentially adverse to the child. The court may order either or both parties to pay the fee ordered by the court. Subdivision (c) addresses appointment of a guardian ad litem. Where parental rights and responsibilities are a substantial issue, the court may appoint a guardian ad litem for a child. The rule allows an attorney to act as guardian ad litem but prohibits the guardian ad litem from serving as the child's attorney. Subdivision (d) defines the role of the guardian ad litem. The rule discourages calling guardians as witnesses, allowing this only when directly probative of the child's best interest and when no other persons could be employed or subpoenaed to testify on the same subject matter. In matters governed by this rule, state-employed social workers rarely become involved. Impartial parental evaluations and home studies are difficult to come by. Despite their apparent availability, guardians ad litem should not be asked to perform these functions. Instead, an expert evaluation or home study may be ordered pursuant to Rule 5. The rule does contemplate the filing of reports by guardians ad litem. This is permissible only after submission to the parties and only by agreement of the parties or pursuant to the rules of evidence--which means as a report by a witness, subject to cross-examination, which the rule discourages as noted immediately above. Thus, as a general rule, reports from guardians will be submitted only if the parties agree to submission. Subdivision (e) establishes the procedure by which a child may be called as a witness. The rule implements the purposes of 15 V.S.A. § 594(b). The statute recognizes that the act of testifying for or against one parent, and requests by a parent for such testimony, are often harmful to children. Even without testifying in court, many children in divorce often feel a false sense of responsibility or guilt. The statute requires appointment of an attorney before a child may be called to testify and requires certain findings on necessity, probative value and harm to the child. The rule differs from the statute by recognizing that in this context the best interests of the child are what are at stake, rather than the procedural rights of the child. Attorneys by training and under these rules generally present the positions of their clients, regardless of the clients' best interests. Children are unlikely to perceive the harm that testimony may cause. An adult acting as a parent or mature advisor, rather than as an advocate, is more likely to effectuate the statutory purpose of protecting children. The rule, therefore, modifies the statute by requiring appointment of a guardian ad litem before a child is called to testify. (An attorney may be appointed to serve as the guardian ad litem, but the role is that of a guardian ad litem rather than as an attorney.) An attorney for the child may also be appointed before the hearing is held. The guardian ad litem, and the attorney, if any, will participate in the hearing held on whether or not the child should testify. The statutory criteria are unchanged. If the ruling is that the child should testify, an attorney must be appointed in all cases.