The Colorado Supreme Court has just ruled that conversations between children and the attorneys who represent them in custody and neglect cases are not protected by attorney-client privilege. The decision is being called a landmark one by child advocates, but the question of whether it better protects the children is still being debated.
The decision, which stems from a 2005 case involving alleged sexual assault on a child, has divided children’s advocates in Colorado. One side applauds the ruling as clearly allowing the guardian ad litem to act in the best interests of the child, the attorneys’ duty is to do what’s best for the child, even if the child doesn’t agree. Others are concerned about a “chilling effect” on troubled children, without the promise of confidentiality there will be less trust.
In Colorado, a guardian ad litem is an attorney appointed to represent a child who has been abused or neglected, or is in foster care. In some instances, they are appointed for kids who have been accused of crimes or are at the center of a custody fight.
In the majority opinion, Justice Nathan Coats wrote that a guardian ad litem does not represent litigants on opposite sides of a case “or even the demands or wishes of the child. . . . The guardian ad litem is statutorily tasked with assessing and making recommendations to the court concerning the best interests of the child.”
The complicated nature of these cases is easily illustrated by the case that produced the ruling. In 2005, Mark Gabriesheski was accused of assaulting a young girl in his care. Shortly before his trial on sex-assault charges, the girl recanted her statements about the abuse. The prosecutor asked the girl’s guardian ad litem to testify about what the girl said, and reportedly, the guardian ad litem wanted to do so. But Gabriesheski’s attorneys objected, and the judge ruled that the guardian ad litem could not testify without the girl’s approval. The girl refused to grant approval.
Without the testimony, prosecutors’ case was weakened and they dismissed the charges. They did, however, appeal.