2002

State of Wyoming

02LSO-0108.W1

 

 

 

WORKING DRAFT

 

 

 

SENATE FILE NO.           

 

 

Guardians ad litem.

 

Sponsored by:

 

 

A BILL

 

for

 

AN ACT relating to guardians ad litem; amending duties of persons appointed by courts in juvenile matters as specified; specifying authority of courts to appoint persons appointed in juvenile matters; providing definitions; conforming provisions; and providing for an effective date.

 

Be It Enacted by the Legislature of the State of Wyoming:

 

Section 1.  W.S. 20-2-205 and 20-2-206 are created to read:

 

20-2-205.  Appointments to represent the child's interest in a domestic relations case.

 

(a)  In a custody proceeding:

 

(i)  The special discovery rules applicable to a disputed child custody or visitation case contained in the Uniform Rules of District Courts of the State of Wyoming shall apply;

 

(ii)  Upon notice, pursuant to Uniform Rules of District Courts of the State of Wyoming, that the parties cannot agree on a custody or visitation schedule, the court shall appoint one (1) or more of the following to assist the court in determining the child's best interest or to represent the legal interests of the child unless the court finds that the child's interests can be determined or represented without such appointments:

 

 (A)  An attorney for the best interests of the child;

 

(B)  A court-appointed expert;

 

(C)  An attorney for the child.

 

(iii)  Upon appointment, an attorney for the best interests of the child, court-appointed expert, and attorney for the child shall receive notice of all legal proceedings. The court-appointed expert may attend all legal proceedings. The attorney for the best interests of the child and the child's attorney shall attend and may participate in all legal proceedings, unless excused by the court.

 

(b)  The order of appointment:

 

(i)  Shall specify:

 

(A)  The type of appointment made under paragraph (a)(ii) of this section;

 

(B)  The scope of the appointment; and

 

(C)  The duties of the appointment pursuant to subsection (c) of this section.

 

(ii)    Shall grant the necessary authority to the appointed individual and define the scope of his authority;

 

(iii)  Shall specify the parties responsible for all fees or costs related to the appointment and, if necessary, the method of payment; and

 

(iv)  May limit the duties or scope of inquiry to a specific issue or allegation.

 

(c)  The duties of the person appointed under paragraph (a)(ii) of this section shall include the following:

 

(i)  The attorney for the best interests of the child shall gather, and be prepared to present, all relevant evidence related to the factors contained in W.S. 20-2-201(a) unless otherwise ordered by the court.  The court shall order the attorney for the best interests of the child to perform all of the following duties, unless the court finds that a particular duty is not necessary under the circumstances:

 

(A)  Interview the parties;

 

(B)  Interview the child, unless the child is too young, in which case the attorney shall observe the child;

 

(C)  Present to the court all nonfrivolous allegations bearing on a determination of the best interests of the child and make reasonable attempts to have these allegations investigated, unless otherwise ordered by the court;

 

(D)  File and serve a pretrial report with the court and all parties, no less than thirty (30) days prior to trial, disclosing the position which will be advocated at trial, anticipated witnesses and a summary of the evidence that will be presented;

 

(E)  Disclose the child's wishes, if expressed, in the pretrial report, unless the attorney reasonably believes that such disclosure could be harmful to the best interests of the child;

 

(F)  Obtain information from the child's attorney;

 

(G)  Obtain information from the child's school;

 

(H)  Interview persons, including counselors, teachers, neighbors and care providers, identified by the court as having special knowledge about the child and his needs; and

 

(J)  Any further duties ordered by the court.

 

(ii)  The court-appointed expert shall investigate, report and, if ordered, express an opinion on the custody or visitation arrangement that serves the best interests of the child.  The investigator shall consider the factors described in W.S. 20-2-201(a) in forming an opinion, unless otherwise ordered by the court.  The court-appointed expert shall be ordered to perform all of the following duties, unless the court finds that a particular duty is not necessary under the circumstances:

 

(A)  Interview the parties;

 

(B)  Interview the child, unless the child is too young, in which case the expert shall observe the child;

 

(C)  Inform the court, the attorney for the best interests of the child and the child's attorney of all nonfrivolous allegations bearing on a determination of the best interests of the child, and make reasonable attempts to investigate these allegations unless otherwise ordered by the court;

 

(D)  File a written report of findings and recommendations with the court, the attorney for the best interests of the child, the child's attorney and the parties;

 

(E)  Disclose the child's wishes, if expressed, regardless of whether these coincide with the expert's recommendation, unless the expert reasonably believes that disclosure would be harmful to the best interests of the child;

 

(F)  Obtain information from the attorney for the best interests of the child or the child's attorney;

 

(G)  Obtain information from the child's school;

 

(H)  Interview persons, including counselors, teachers, neighbors and care providers, having special knowledge about the child and his needs; and

 

(J)  Any further duties recommended by the court.

 

(iii)  The child's attorney shall represent the child as an attorney in the custody proceedings and shall advocate the child's wishes unless the court orders otherwise.

 

 (d)  A court-appointed expert appointed pursuant to this article who reasonably discharges the duties contained in the order shall be immune from liability for damages arising from an act performed in furtherance of his court-ordered duties.

 

20-2-206.  Definitions.

 

    (a)  As used in this article:

 

(i)  "Attorney for best interests of child (ABI)" means an attorney appointed by the court if the court determines that the child needs an attorney to advocate for the child's best interest in a custody proceeding. Theattorney for the best interests of the child shall:

 

(A)  Be an attorney;

 

(B)  Not serve as the court-appointed expert or child's attorney in the same custody proceeding; and

 

(C)  Not testify.

 

(ii)  "Child's attorney" means an attorney appointed by the court if the court determines that the child is not impaired and needs an attorney to advocate the child's interest in a custody proceeding. Theattorney shall not serve as the attorney for the best interests of the child or court-appointed expert in the same custody proceeding and shall not testify;

 

(iii)  "Court-appointed expert" means an expert appointed by and for the court.  The person shall be qualified by knowledge, skill, experience, training or education to investigate the issues designated by the court and to provide findings, determinations and recommendations as ordered by the court. Any determinations or recommendations shall be based on the best interests of the child unless otherwise ordered by the court.  The expert shall submit a written report to the parties and the court detailing all investigatory actions, relevant findings, determinations and recommendations.  The expert may be called as a witness to testify about matters related to any investigation, or the content of the report.  The expert shall not participate in the proceedings in the capacity of an attorney;

 

(iv)  "Custody determination" means a temporary or permanent court order providing for the custody of a child, including visitation rights, but does not include a decision solely relating to child support or any other monetary obligation of any person;

 

(v)  "Custody proceeding" means a proceeding in which custody, visitation or parenting time is an issue, such as an action for divorce or separation, modification of child custody or visitation, or a paternity action;

 

(vi)  "Domestic abuse" means as defined in W.S. 35-21-102(a)(iii).

 

Section 2.  W.S. 14-2-107, 20-2-112(b), 20-2-201(a)(intro),  by creating new paragraphs (x) and (xi),  by renumbering (x) as (xii), (d) and  by creating a new subsection (g) and 20-2-202 by creating a new subsection (b) are amended to read:

 

14-2-107.  Parties; notice and hearing required.

 

The child shall be made a party to the action. If the child is not represented by a state agency and the child is a minor, the child shall be represented by the child's custodian or guardian. or a guardian ad litem appointed by the court for the limited purpose of establishing paternity, unless the court appoints the guardian ad litem as in all other actions involving domestic relations. The child's mother or father may not represent the child as guardian or otherwise.  If the court determines that the interests of the child and the interests of the child's custodian or guardian differ, the court may appoint a guardian ad litem to represent the best interests of the child solely for the purpose of establishing paternity.  In any case in which custody or visitation is, or becomes, an issue, the court's actions shall comply with the requirements of W.S. 20-2-201 through 20-2-206.  The natural mother, each man presumed to be the father under W.S. 14-2-102 and each man alleged to be the natural father may be made parties and shall be given notice of the action in a manner prescribed by the court and an opportunity to be heard. The court may align the parties.

 

20-2-112.  Examination concerning property interests; enforcement of court orders; temporary custody of children.

 

(b)  On the application of either party, the court may make such order concerning the care and custody of the minor children of the parties and their suitable maintenance during the pendency of the action as is proper and necessary and may enforce its order and decree in the manner provided in subsection (a) of this section. The party applying for the order shall notify the court of any known protection or custody orders issued on behalf of the parties from any other court. The court shall consider evidence of spouse domestic abuse or child abuse as defined in W.S. 35-21-102(a)(iii) as being contrary to the best interest of the children child. If the court finds that family violence domestic abuse has occurred, the court shall make arrangements for visitation during temporary custody that best protect the children child and the abused spouse parent from further harm.  The court may make appointments pursuant to W.S. 20-2-205(a)(ii) to assist the court in determining the temporary care and custody arrangement that serves the best interests of the child in accordance with W.S. 20-2-201.

 

20-2-201.  Disposition and maintenance of children in decree or order; access to records.

 

(a)  In granting a divorce, separation or annulment of a marriage or upon the establishment of paternity pursuant to W.S. 14-2-101 through 14-2-120 custody proceeding, the court may make by decree or order any disposition of the children that appears most expedient and in the best interests of the children. In determining the best interests of the child, the court shall consider, but is not limited to, the following factors:

 

(x)  The child's wishes and opinions may be considered as deemed relevant and given the weight the court deems appropriate based on the age of the child, reasons for the preference, the relative fitness of the preferred and non-preferred parent, any hostility toward the non-preferred parent, the preference of other siblings and whether the child's preference has been tainted or influence by one (1) parent against the other parent;

 

(xi)  Those factors which will contribute to the child becoming an independently functioning member of society; and

 

(x)(xii)  Any other factors the court deems necessary and relevant.

 

(c)  The court shall consider evidence of spousal domestic abuse or child abuse as being contrary to the best interest of the children child. If the court finds that family violence domestic abuse has occurred, the court shall make arrangements for visitation that best protects the children child and the abused spouse parent, if appropriate, from further harm.

 

(d)  The court shall order custody or visitation in well defined terms to promote understanding and compliance by the parties. The court may order the child, his parents or the guardian to undergo evaluation and indicated treatment or another program designed to address problems when it is in the child's best interests. Custody shall be crafted to promote the best interests of the children, and may include any combination of joint, shared or sole custody.

 

(g)  In any custody proceeding, the court may make appointments pursuant to W.S. 20-2-205(a)(ii).

 

20-2-202.  Visitation.

 

(b)  The court may make appointments pursuant to W.S. 20-2-205(a)(ii) to assist the court in determining a visitation schedule that serves the best interests of the child.

 

Section 3.  This act is effective July 1, 2002.

 

(END)

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