Dickie Scruggs and Redemption
November 18, 2015 § 2 Comments
If you’ve been around here for a while, you know that I have not been a fan of Dickie Scruggs and the damage he did to the legal profession and our courts.
Aside from his arrogance and trampling of ethics, it galled me that he seemed to be trying to deflect the blame onto the judges he either corrupted or attempted to corrupt. I almost expected his post-prison persona to be devoted to a rehabilitation of his former formidable self, coupled with casting doubt on the criminal cases that brought him down.
But the exact opposite has happened. I saw a recent interview with Tom Brokaw in which Mr. Scruggs admitted that his criminal conduct came about because “I got too big for my britches,” and “It was hubris” plain and simple. In a Clarion-Ledger interview he said, “I regret what I did. I paid a high price for it. After all, I pled guilty to corruption.” Those are breathtakingly humble admissions from a man who once ran over anyone and everything that stood in the way of what he wanted, ethics and the law be damned.
In prison, he came to grips with how far he had fallen and rediscovered decency. He began tutoring inmates for an adult GED program. Since his release, he has begin promoting adult illiteracy classes. You can read the Clarion-Ledger interview at this link. Scruggs says in the interview that he misses the practice of law, but now he has a worthy cause to which he can bring his advocacy skills.
I wish Mr. Scruggs well in this endeavor, as we should all. He is no longer a colleague, and never again will he be, but he is trying to make a difference in our poor, undereducated state, and that deserves applause and encouragement, no matter who is doing it.
Mismanagement of a Guardianship Morphed into a Crime
November 17, 2015 § 1 Comment
Attorney Michael J. Brown mismanaged and embezzled more than $1.2 million of guardianship funds. It’s a sordid tale that you can review at this post, which includes links to several others. Brown’s conduct also attracted an indictment in Rankin County Circuit Court.
On November 12, 2015, the MSSC in Brown v. State affirmed his convictions, but reversed as to restitution:
¶61. Brown’s convictions were supported by sufficient evidence and were not against the great weight of the evidence. Ample evidence existed to show that the $550,000 in loans came out of guardianship funds, and the trial court applied the law correctly with regard to the “own use” element of the statute. Brown waived any objection to Rule 404(b) evidence being admitted at trial, and he waived any objection to the language in the jury instructions by failing to raise the issue in his post-trial motion. Regardless, both arguments are without merit. Thus, Brown’s convictions and sentence to a term of years are affirmed. However, the trial court exceeded its sentencing authority in sentencing Brown to pay $1.2 million in restitution; thus, this Court vacates the restitution portion of Brown’s sentence and remands the case for resentencing, in other words, for again determining restitution, consistent with this opinion.
Brown has already been disbarred. He leaves in his wreckage the ward, whose assets will probably never be recovered, his career, his family, and his reputation.
I doubt most of you will ever fall into such an abyss. But if you find yourself close, step back and think of how Mr. Brown’s misadventure turned out.
Something Beneath the Surface
November 16, 2015 § Leave a comment
The recent COA case Campbell v. Watts, decided October 20, 2015, illustrates a frustrating phenomenon that every chancellor has experienced. It’s the dilemma presented in a child custody case where the proof is not very strong, and certainly not conclusive, yet there is evidence of a situation where questions about the child’s best interest arise.
Greg and Catherine Campbell were divorced from each other in 2004, and they shared joint legal and physical custody of their son, Gavin. In 2010, Greg filed for modification, and he was awarded sole physical custody, with the parties sharing joint legal custody.
In 2013, Catherine, now “Watts,” filed a petition to modify custody, claiming that Greg was withholding visitation. At trial, Gavin testified that he wanted to spend a week alternating with each parent. Catherine testified that Greg was controlling, and that Gavin displayed rebellious behavior. Catherine conceded that Greg had been complying strictly with court-ordered visitation, but she felt that he should be more liberal with allowing her time with Gavin. Greg complained that Catherine and her husband had parties at their home that were inappropriate for Gavin, which Catherine disputed.
The chancellor found that the parties should share joint physical custody, alternating by weeks, and that Greg should honor the joint legal custody arrangement. She ordered Greg to pay Catherine $300 a month child support. The COA opinion described the ruling this way:
¶12. In the chancellor’s bench opinion, she stated that Greg needed to include Catherine in the decision making, per the joint-legal custody arrangement. The chancellor also urged Greg to allow Gavin more time at Catherine’s when he asks to stay there a bit longer. In modifying custody, the chancellor stated Gavin wanted to alternate time with both parents. She further stated that Gavin’s attitude when he returns to his father’s is “just the bubbles of something boiling under the surface.” The chancellor explained that she wanted to prevent Gavin from acting out in the future.
The chancellor dis not specify what were the material change and adverse effect upon which the modification was based, and she did not conduct an Albright analysis.
Judge Fair penned the majority opinion, which was joined by Lee, Barnes, Ishee, Carlton, and Maxwell. Wilson wrote a separate opinion, concurring in part and dissenting in part, which was joined by Irving, Griffis, and James. The majority, which rendered judgment in favor of Greg, devoted part of its rationale to addressing the separate opinion. Because it addresses some legal issues that many of you deal with every day, I will quote from it at length:
¶13. “Where there is no specific identification of the alleged change in circumstances, this Court is placed in the position of attempting to guess what the chancellor determined was a proper basis for a change in custody.” Sturgis v. Sturgis, 792 So. 2d 1020, 1025 (¶19) (Miss. Ct. App. 2001). Despite Catherine’s claims, the record reflects that she failed to present any proof that Greg’s living situation had changed at all since the modified divorce decree was entered, that it had adversely affected Gavin, or that Gavin was in any danger. See Giannaris, 960 So. 2d at 467-68 (¶10) (modification must be based on conduct of the parent who poses a danger to the mental or emotional health of the child). In fact, Catherine testified that she had no problems with Greg’s home.
¶14. In modifying custody, the chancellor emphasized Gavin’s testimony, where he said he would like to alternate time with both parents. Gavin’s election alone, as the separate opinion admits, does not rise to the level of a material or substantial change of circumstances. In re E.C.P., 918 So. 2d 809, 824 (¶62) (Miss. Ct. App. 2005); see also Best v. Hinton, 838 So. 2d 306, 308 (¶8) (Miss. Ct. App. 2002) (modification of custody based upon the child’s preference was reversed because “such an expression, supported by nothing more,” is not “the type of adverse material change in circumstance that would warrant a custody modification”). The chancellor also expressed concern about Gavin’s “rebellious” behavior. There is no evidence in the record detailing such behavior or showing an adverse effect on Gavin. Gavin’s stepmother, Ashley, explained that any “rebellious” behavior quickly went away after twenty-four hours of Greg’s return to his father’s home. And Gavin testified that his father was not doing anything mean to him in the home. Gavin further testified that he made good grades in school and had a good relationship with his stepmother and younger brother (Greg and Ashley’s son).
¶15. The separate opinion would hold that custody modification can be based on a thirteen-year-old’s expression of his preferences and his reasoning supporting them. We would note, however, that in 2006, Mississippi Code Annotated section § 93-11-65 (1)(a) was amended to say “the chancellor may consider the preference of a child of twelve (12) years of age or older” in a custody determination, as opposed to the previous language stating that the chancellor shall consider the preference of the child. See Miss. Code Ann. § 93-11-65 (Rev. 2013) (emphasis added); Miss. Code Ann. 93-11-65 (Rev. 2004). “Before this amendment, a child over the age of twelve had the ‘privilege’ of choosing which parent to live with, as long as both parents were fit and it correlated with the best interest of the child, instead of merely being able to express that preference, as the statute currently reads.” Phillips v. Phillips, 45 So. 3d 684, 693 (¶28) (Miss. Ct. App. 2010). Now, a child’s preference is recognized as only one of the Albright factors, similar to the “tender years doctrine” (or the maternal preference rule), which was given similar statutory weight at one time. See Albright v. Albright, 437 So. 2d 1003, 1004-05 (Miss. 1983) (acknowledging the recent “reevaluation” and “weakening process” of the doctrine).
¶16. The dissent also emphasizes the fact that Greg’s testimony failed to show how Catherine’s home environment was unfit, and that this finding, in addition to Gavin’s request to spend more time with both parents, supports the chancellor’s modification. But it is Catherine’s burden “to show by a preponderance of the evidence that a material change in circumstances has occurred in the custodial [parent Greg’s] home.” Mabus v. Mabus, 847 So. 2d 815, 818 (¶8) (Miss. 2003). And this change must adversely affect Gavin’s welfare. Id.
¶17. Greg and Catherine were originally granted joint physical custody after their divorce in 2004. In 2010, Greg was granted physical custody. Three years, later Catherine petitioned for joint physical custody. So this will be the third time Greg’s parents have sought involvement of the court in his custodial arrangements. The separate opinion submits that Gavin’s hurt feelings, as explained in his testimony and in conjunction with an expressed “preference” for alternate weekly visitation with both parents, are “adversely affecting” him and justify a change in his custody. But “[i]t is foreseeable, indeed expected, that as a consequence of divorce a child will experience changes in his or her circumstances and experience anxiety as a result of the disruption of the family unit. Divorce has consequences which are often adverse, particularly for younger children.” Lambert v. Lambert, 872 So. 2d 679, 684 (¶19) (Miss. Ct. App. 2003). When considering initial custody arrangements or a modification of custody (whether months or years later), chancellors should not change custody based on these consequences without sufficient justification. Id. The noncustodial parent must prove that the “mental and emotional well-being of the child [is in] danger as a result of living with the custodial parent.” Id. at 685 (¶26). Catherine did not.
¶18. Rather than modify custody, however, the chancellor could have easily modified the visitation schedule based on the evidence of record (particularly Gavin’s testimony). To modify visitation, “[a]ll that need be shown is that there is a prior decree providing for reasonable visitation rights which isn’t working and that it is in the best interests of the children” that it be modified. Cox v. Moulds, 490 So. 2d 866, 869 (Miss. 1986). Although Catherine petitioned to modify custody, in her testimony she specifically asserted that she wanted Greg to be more liberal with her visitation. The testimony of Greg, Catherine, and Gavin reflects that the visitation schedule at the time of the hearing clearly was not working. And that evidence as discussed in the chancellor’s ruling, which emphasized Gavin’s need to have an improved relationship with both of his parents, may have been sufficient to support a grant of more liberal visitation to Catherine. See Harrington v. Harrington, 648 So. 2d 543, 545 (Miss. 1994) (stating that the chancellor’s consideration of visitation always includes recognition of the child’s need to maintain a loving and healthy relationship with the noncustodial parent). Modifying visitation would have allowed the chancellor to grant Catherine and Gavin’s request for more time together, without weakening the material change in circumstances standard long required for modification of custody of children.
¶19. As stated in Ballard v. Ballard, 434 So. 2d at 1357, 1360 (Miss. 1983), a change in custody is a “jolting, traumatic experience. It is only that behavior of a parent which clearly posits or causes danger to the mental and emotional well-being of a child (whether such behavior is immoral or not), which is sufficient basis to seriously consider the drastic legal action of changing custody.” The separate opinion correctly notes that Greg strictly adhered to the court order, keeping Gavin from spending any extra time with Catherine. The chancellor characterized Greg’s behavior as unreasonable. Gavin testified that his dad’s behavior in strictly honoring the court order hurt his feelings. While his behavior may justify a modification of visitation, we cannot find that it amounts to a material change in Greg’s home that has adversely affected Gavin.
The separate opinion would have found that the chancellor did not err in finding a material change in circumstances, and would have remanded for further proceedings.
The chancellor in this case sensed “something boiling beneath the surface,” and she attempted to fashion a remedy. Unfortunately, that is not a legal standard. Still, this case illustrates what happens from time to time in child custody proceedings. There is something askew that needs to be addressed, but the proof simply does not support the measure that the judge deems necessary to resolve the issue.
What’s Your Biggest Rant About …
November 13, 2015 § 6 Comments
… How hearings are scheduled in chancery court?
What doesn’t work well, and how would you fix it?
Comments by lawyers and judges are welcome and invited. You may post as anonymous or use a screen name, but you must include a valid email address so that I can verify that you are a member of the legal profession. Your email address will not appear.
No personal attacks. Please do not name particular lawyers or judges. Please be brief and to the point. All comments by persons who have not been approved before are moderated, so it may take a while for your comment to appear if it is approved.
Have at it.
The Disappearing Child Support Arrearage
November 12, 2015 § 3 Comments
Occasionally some lawyer will approach me and ask that I sign an Agreed Judgment, signed off by all concerned, that settles a contempt issue. The petition charged that the respondent had something like a $3,500 arrearage, but now the judgment says he is current. “What happened to the arrearage?” I ask. The answer is something like, “Oh, we agreed to let that go if he would agree to supervised visitation from now on,” or “He really owes $3,500, but we agreed to forgive that if he would just pay on time in the future.”
Well, you just can’t do that, not even by agreement.
In the recent COA decision in Caldwell v. Atwood, handed down November 3, 2015, the court noted at ¶20 that, “While the law allows for credit to be made for child-support payments through additional physical support by the noncustodial parent, it does not permit those payments to simply be ‘purged,’ whether by an agreement or order.”
This is a subject about which I have posted here before. You simply can’t contract away an arrearage, and, for that matter, you can’t contract away your minor children’s right to future support.
In Caldwell, the chancellor had found Thomas Atwood in arrears in child support, but did not adjudicate an amount, or order him to pay it. Instead, the chancellor ordered him to “purge” himself of contempt by paying future support equal to 14% of his adjusted gross income. The COA reversed, holding that it was error for the judge in essence to forgive the arrearage. As the court went on to say in its decision:
¶19. It is well settled that “court-ordered child-support payments vest in the child as they accrue and may not thereafter be modified or forgiven, only paid.” [Harrington v. Harrington, 648 So.2d 543, 545 (Miss.1994) … at (¶14) (quoting Varner v. Varner, 588 So. 2d 428, 434 (Miss. 1991)). “Such benefits belong to the child, and the custodial parent has a fiduciary duty to hold them for the use of the child.” Id. at (¶13) (quoting Smith v. Smith, 20 So. 3d 670, 674 (¶13) (Miss. 2009)).
The COA remanded the case for the trial court to determine the amount of arrearage owed to Caldwell, and to formulate a payment plan.
On a related point, there seems to be a vogue whereby the divorcing parents agree to joint legal and physical custody, and they use that arrangement to justify no child support, I guess due to the “shared custodial arrangement.” I do not believe in most cases that this is in the best interest of the children. To me, the custody arrangement is being driven not by what the parents truly believe is best for the children, but rather by the desire to create a mechanism that the judge will approve that will eliminate child support. I look at these with great skepticism. The parents have to convince me that the arrangement is genuinely in the best interest of the children. And, if there is a discrepancy in income, I require the parent with greater income to pay child support based on the difference. When parties learn that there is a way to get out of paying, they will exploit that loophole to gain an advantage in divorce negotiations that can have a negative effect on the children.
Correcting Course in an In Loco Parentis Case
November 10, 2015 § 1 Comment
Back in January, 2014, we talked about the COA’s decision in JSW v. AWS, handed down in December, 2013. Here’s our recitation of the facts in JWS:
… Jake and Ann married when Ann was pregnant. Vanessa was the first child born, followed by Brett, a year and a half later. Before she married Jake, Ann had a one-night stand with Tommie. Tommie believed he could be the father of Vanessa, but he took no action because he knew of Jake’s and Ann’s relationship.
In 2007, when Vanessa was nearly three years old, Tommie’s mother called and inquired whether Vanessa might be his child. Ann denied it, but Jake decided to have a DNA test, which ruled him out as the natural father. Jake and Vanessa decided that he would continue to raise Vanessa as his own.
In 2009, Jake and Ann were divorced after five years of marriage. In the divorce, via PSA, the parties agreed that they would share physical custody, alternating weekly.
Less than a year after the divorce, the parties were back in court, fighting over custody and support. Before a hearing could be held in their contest, however, Tommie filed an action for an adjudication of paternity of Vanessa, and for custody, and visitation. A DNA test confirmed that Tommie was the natural father of Vanessa.
In his adjudication, the chancellor considered Jake and Tommie as the natural parents, and Jake as a third party. He found that, although Jake had acted in loco parentis, that alone was not enough to overcome the natural parent presumption. The chancellor awarded Ann custody, and Tommie visitation. Based on Jake’s in loco parentis status, the chancellor awarded him visitation commensurate with Tommie’s.
The COA reversed, finding that the chancellor applied an incorrect legal standard. The COA held that the non-natural father’s fatherly actions had rebutted the natural-parent presumption, the COA directed the trial court on remand to consider Jake as on an equal footing with the natural parents, to conduct an Albright analysis with respect to his claim, and to factor him into the custodial mix, essentially creating a three-way custody contest.
Tommie petitioned for cert, which the MSSC granted. In its decision, handed down December 11, 2014 under the style of In the Interest of a Minor Victoria Denise Waites: Waites v. Ritchie and Sanford, the MSSC reversed, finding that the chancellor did apply the correct legal standard, and reinstating his decision.
You can read the decision for yourself. It includes all the authority you might expect, an reaches what I believe is a rational conclusion based on the entire body of case law that has developed in this area. It also removes the specter of more possible three-way custody disputes in cases like this — although the mind of man and the imagination of lawyers may prove that statement wrong in some later case.
The reason I am posting this now is that I found that I had never posted on Waites, as I should have, and this is a fairly active area of custody litigation, so I wanted this case to pop up if you search the in loco parentis topic.
By the way: notice how the in loco parentis father who was denied custody ultimately by the MSSC’s affirmance nonetheless has kept his visitation throughout?
The Next Obergefell Shoe Falls
November 9, 2015 § 6 Comments
Before the US Supreme Court ruled in Obergefell v. Hodges on the constitutionality of same-sex-marriage bans and recognition of same-sex-marriages contracted in other states, Mississippi had its own same-sex-marriage case, Czekala-Chatham v. State of Mississippi, about which I posted previously. At the trial level, the chancellor had refused to recognize the parties’ marriage in another state, as required by the language of our state Constitution, and the appellant appealed, claiming that the Mississippi provision was contrary to the US Constitution. The State of Mississippi countered, taking the position that the ban was constitutional. As you may recall, the MSSC put that case on hold after the SCOTUS granted cert in Obergefell.
Then Obergefell came down in June, 2015, ruling unconstitutional state bans on issuance of marriage licenses to same-sex couples and requiring states to recognize the lawful marriages of same-sex couples in other states. Mississippi then confessed the appellant’s position in Czekala-Chatham, and the appellant then moved to dismiss the complaint and render judgment in favor of the appellant. The case has sat on the MSSC docket since then. In the four months since SCOTUS ruled, our court had been silent on its same-gender case.
On November 5, 2015, in Czekala-Chatham v. State of Mississippi, the MSSC did finally rule on the case, but only via an order that says, in essence, that, since the state had agreed that the case should bee reversed and remanded for further proceedings, “We find that no contested issues remain for resolution, and that the [appellant’s] motion should be granted. End of case for now.
The order, signed by Justice Randolph, was joined by Lamar, Chandler, and Pierce. Pierce agreed, with a separate opinion joined by Chandler. Justices Dickinson, King, and Coleman objected to the order.
All writing separate opinions would have preferred to render an opinion in the case to discuss its merits. Justice Coleman offered his objecting opinion as what he would have written to find Mississippi’s laws on the subject unconstitutional.
From the majority’s viewpoint, I suppose, the order narrowly rests on the vehicle that was presented to the court: i.e., the appellant’s motion to dismiss, and the majority did not want to venture out into areas not encompassed in the motion.
To the objectors, however, the court missed an opportunity to settle this area of law in our state so that litigants, lawyers, and judges would have a clear beacon by which to navigate.
All of the ramifications of Obergefell will become clear over time, but it will take more appeals than Czekala-Chatham to get there, it appears.
“Quote Unquote”
November 6, 2015 § 2 Comments
“As for the education of our children is concerned I think they should be taught not the little virtues but the great ones. Not thrift but generosity and an indifference to money; not caution but courage and contempt for danger; not shrewdness but frankness and a love of truth; not tact but love for one’s neighbor and self-denial; not a desire for success but a desire to be and to know.” — Natalia Ginzburg
“To be able to practice five things everywhere under heaven constitutes perfect virtue — gravity, generosity of soul, sincerity, earnestness, and kindness.” — Confucius
“The weakest of all weak things is a virtue which has not been tested in the fire.” — Mark Twain
When is Appointment of a GAL Required?
November 4, 2015 § 1 Comment
There are three circumstances when appointment of a GAL in chancery court is required by statute: (1) when an allegation is made in pleadings or at hearing that there has been abuse or neglect; and (2) when there is an adoption to which both active parents have not consented; and (3) for the child in a termination of parental rights suit.
Other than those situations, it is in the chancellor’s discretion whether to appoint a GAL.
The question remains, however: what needs to be alleged in order to trigger the statutory mandate? That was the question before the court in the COA case of Carter v. Carter, handed down October 6, 2015.
Josh and Jennifer Carter were from each other in 2011. Jennifer got custody of the parties’ daughter, Delaney. Josh filed for modification of custody in 2012, alleging material change and adverse effect. In the course of the proceedings, Josh filed a motion to inspect the premises of Jennifer’s residence. The chancellor ruled that neither Josh nor his attorney should do so, but he appointed Aby, a local attorney to perform the inspection and file a report with the court. Although the appointment did not designate her as a GAL, and it did not spell out any duties of a GAL, Aby titled her report, “Report of Guardian Ad Litem.” Neither party had requested appointment of a GAL. At trial, Aby testified to deplorable conditions at Jennifer’s home, which the chancellor characterized as “shocking,” “squalid,” and “dangerous.” Aby’s report, considered with testimony about Delaney’s medical needs, were enough to convince the chancellor to conclude that custody should be modified, and he awarded custody to Josh.
Jennifer appealed, arguing that the chancellor erred by not appointing a GAL in the case. Specifically, she pointed to Josh’s testimony that she overlooked Delaney’s medical and nutritional needs, which, she contended, should have required the appointment. Jennifer’s argument raises what appears to be a simple question, but is really deceptively complex: what does it take to trigger the statutory mandate?
Judge Fair, for the majority, described the difficulty:
¶16. Our analysis of this issue is made more difficult because our supreme court has not elaborated on what sort of allegations are required, or when or how those allegations must be made, in order to make the appointment of a guardian ad litem mandatory. Neglect is difficult to define and could arguably be present, to some degree, in mundane allegations of imperfect parenting that should not demand investigation by a guardian ad litem. Jennifer’s implicit argument that any suggestion of neglect requires the appointment of a guardian ad litem would amount to a de facto rule that a guardian ad litem must be appointed in most custody disputes.
Almost every custody modification case involves allegations of “imperfect parenting” that often does not rise to the level off neglect and abuse. So where does one draw the line?
The court went on to point out that the MSSC “has always predicated the guardian-ad-litem requirements on the Mississippi Youth Court Law and related statutes,” and analyzed the applicable law. The opinion continues:
¶18. We conclude that since the requirement of appointing a guardian ad litem in chancery cases derives from an exception to the youth court’s jurisdiction over abused or neglected children, to trigger the guardian-ad-litem requirement, the allegations of neglect must be of sufficient severity such that, if proven, they would have triggered the youth court’s jurisdiction had there not already been proceedings in the chancery court. In other words, they must amount to an allegation that the child was a neglected child as defined by the Youth Court Law. It defines a neglected child as one:
(i) Whose parent, guardian or custodian or any person responsible for his care or support, neglects or refuses, when able so to do, to provide for him proper and necessary care or support, or education as required by law, or medical, surgical, or other care necessary for his well-being; however, a parent who withholds medical treatment from any child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall not, for that reason alone, be considered to be neglectful under any provision of this chapter;
(ii) Who is otherwise without proper care, custody, supervision or support; or
(iii) Who, for any reason, lacks the special care made necessary for him by reason of his mental condition, whether the mental condition is having mental illness or having an intellectual disability; or
(iv) who, for any reason, lacks the care necessary for his health, morals or well-being.
Miss. Code Ann. § 43-21-105(l) (Supp. 2014).
…
¶23. Given the wide range of conduct that could arguably constitute neglect, this Court has held that when neglect is not expressly alleged, the question of whether it has been effectively alleged is entrusted to the sound discretion of the chancellor. See Johnson v. Johnson, 872 So. 2d 92, 94 (¶8) (Miss. Ct. App. 2004). In this case, the chancellor clearly did not take the allegations and evidence presented regarding Delaney’s health and care in Jennifer’s custody as possessing the weight and severity of an allegation that she was a neglected child under the Youth Court Law, and we cannot say there was an abuse of discretion in the failure to appoint a guardian ad litem to investigate.
The COA did hold that, if appointment of a GAL in this case were required, Aby’s conduct fulfilled that role.
It would be a good idea, if you think a GAL should be appointed, to include some language in your pleadings that invokes the criteria of the Youth Court Act. Then you can point to the specific language of the statute to support your request. Only be sure you have substantial proof to support your allegations, or else your client may be looking at paying out a chunk of cash for the GAL’s troubles, not to mention the other side’s attorney’s fees to defend.
The Better Chancery Practice Blog 