How my role as a guardian ad litem has changed with the increase of mental health diagnoses in adolescents

I have served as a guardian ad litem1 in Virginia for over 15 years in all types of court cases – divorce, custody and visitation, abuse and neglect petitions, child dependency cases, foster care cases, adoption...the list goes on.2 Most GALs in the state have noticed the increase in mental health diagnoses and serious concerns regarding teens over the last several years3 not only in family law cases, but also in child welfare and child delinquency cases. A global pandemic did not do this already vulnerable population any favors. As a result, the investigation that I am required to perform for the Court has changed significantly. In Virginia, there are standards to which GALs must adhere in our representation and protection of a child's best interests.4 These standards outline the scope of our role, which include conducting a thorough investigation of the issues and providing a recommendation to the Court as to what is in the child's best interests. In Virginia, there are enumerated factors the Court must consider and thoroughly explain when determining what is in the child's best interests.5 The first factor the Court shall consider is “The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs.” Another factor is each parent's ability “to accurately assess and meet the emotional, intellectual and physical needs of the child.” In layman's terms, what is the mental condition of the child and is the parent able to assess and meet the mental health needs of the child? These statutory factors, as they relate to a child's mental health needs, have become even more important to the Court's analysis as to what is in a child's best interests. When working with a teen who has a serious mental health diagnosis, I often perceive that my role morphs into that of a social worker. As the GAL, I have the power to speak to every professional who has the child as a client, and often additional professionals who are working with each parent (as long as the parents provide consent). The parties and the Court are relying on me to gather information in a timely manner and make recommendations as to decision-making authority and parenting time schedules. At the same time, the parties' attorneys are pushing back because they are not privy to the same information, only hearing about the case from their client. An even more significant potential landmine is gathering information and making recommendations to the parents as to next steps while awaiting a trial date, while also maintaining the child's confidentiality in the process. As a GAL, it is of utmost importance that I preserve the relationship between the client and their therapist, especially if the therapist is one of the few people in whom the child is confiding and learning the tools and coping mechanisms to combat the negative thoughts and behaviors associated with their mental illness. I never want a child to be reticent about confiding in and working through issues with their therapist because they are worried that their parents will learn the information that they reveal. This concern is even greater when the GAL issues a subpoena for the mental health provider to testify about their work with the child. Issuing a witness subpoena for a child's therapist by the child's GAL should not be done without serious consideration. I must tread a delicate path between gathering information from providers and providing just enough of that information to the parents and their counsel to guide them in making decisions best for the adolescent while also not sharing so much information that the teen's trust and confidence in their therapist is jeopardized. As a GAL, I may want the Court to hear directly from the child's therapist when the Court is determining what custodial arrangement is best for the child. The therapist will often resist coming to Court to testify in order to protect the therapeutic relationship with their client. Therapists may also view the disclosure of information to the Court as a breach of their ethical duty to provide and protect confidentiality. They will often assert that the information they have to provide the Court will not include a recommendation with regard to a custodial schedule or any input towards a legal custody decision. With a litigious divorce or custody battle in the background, a child often lacks trusted adults in their life, and the client-therapist relationship provides a secure, confidential relationship for the child. However, when I issue a witness subpoena to the child's therapist to testify in Court, I have to weigh the benefits of the therapist's testimony in front of both the Court and the child's parents against the detriment to the child's trusting relationship with the therapist. This determination is even more difficult when the child's mental health has significantly hampered their ability to trust the therapist from the beginning of their work together. As a work around, when making my recommendations to the Court, I can disclose what the therapist would testify to if subpoenaed without summonsing the therapist to Court. Live testimony is obviously much more effective than a summary from the GAL as to the therapist's testimony. However, if I believe that subpoenaing the child's therapist to Court will seriously jeopardize the therapeutic relationship and hinder the child from receiving the mental health services they need, I will always act in accordance with what is in the best interests of the child and instead provide a thorough and exhaustive summary of the therapist's position when providing my recommendations to the Court. The Court's intervention is necessary when the parents are at loggerheads over the treatment and management of their adolescent's mental health. One such conflict can arise over a teen's screen time. Research suggests that increased screen time in teens is more likely to lead to a diagnosis of depression or anxiety.6 Litigating parents with a teen who already has a mental health diagnosis may institute different rules in each household. When you combine contentious custody litigation, conflicting rules over screen time, and the impact of increased screen time on a teen struggling with mental health, Courts are often asked to order a shared plan regarding screen time and technology use. This can also include restrictions on types of applications and programs a child is permitted to use. I often recommend that the Courts order parents to utilize the website Common Sense to help facilitate the same rules for which applications, media and games their teen can use.7 Another type of conflict arises when one parent wants the child to receive mental health treatment and medication and the other parent disagrees. Additionally, conflict arises around the issue of choice of mental health provider. In our regional area, there is a significant shortage of providers and Central Virginia has been designated as a Health Professional Shortage Area for low-income individuals seeking mental health services.8 Because the demand for mental health providers is so high, many mental health professionals do not accept insurance, making the cost of such services cost-prohibitive for even middle-class families. Therefore, when considering the cost and lack of availability of mental health providers, the argument related to choice of provider often arises in families that have the means to pay for a mental health provider out-of-pocket. This also means these parents have the means to pay the legal fees to fight the battle of not just whether the child has a therapist, but who should serve as that therapist. On the other hand, parents with limited funds to pay out-of-pocket for a therapist are less likely to fight about which provider should serve their teen. When parents are unable to decide whether their child should have a therapist or who the therapist should be, the Court will often determine who should have legal custody over mental health decisions for the child. The Court may address this in several ways including ordering a child to be seen by a particular provider, ordering that one parent have sole legal custody when it comes to mental health decisions for the child, or awarding joint legal custody with one parent having the final decision-making authority regarding mental health issues. The latter ruling requires parties to have a meaningful discussion with one another about the topic. If they cannot agree, the parent with final decision-making authority exercises such power. The default for most family law cases when Courts are addressing legal decision-making about a child's mental health is to award joint legal custody. However, if it is apparent that a parent is not making decisions that are in the best interests of the child, and the child is suffering in terms of mental health, academic performance and social interactions, a Virginia Court may strip that offending parent of legal custody. A GAL may have to file motions while waiting for a trial date when one or both parties are refusing to seek help for the child and/or consent to treatment. In such cases, a GAL may file a petition requesting the court to declare the child to be a “child in need of services,”9 or a petition to establish that a child is abused or neglected.10 These are court filings that get the Court's attention so that a date can be scheduled immediately. Once determinations have been made in an adjudicatory hearing, the Court then has at its disposal a plethora of dispositional outcomes which include (1) ordering the parents of a child to follow the recommendation of specific mental health providers and medical doctors or (2) awarding legal custody to one parent over another, or (3) transferring custody of the child to a local department of social services or relative. This latter remedy is reserved for those situations when reasonable efforts have been made to prevent the removal of the child from their home and remaining in the home would be contrary to the welfare of the child. One of the mandates in my role as a GAL is to participate in mediations and negotiations. When working with teens with mental health concerns, I have often found myself advocating for the parties to settle rather than litigate in Court due to the teen's awareness of the litigation. When children struggling with their mental health are aware that their parents are litigating custody, it is only reasonable to expect that such litigation might increase the teen's anxiety – while also dealing with the everyday stressors of being an adolescent in 2023. I feel empowered to provide some relief to the child by encouraging the parties to settle their case out of court. Many family law attorneys are familiar with the 11th hour settlement negotiated on the courthouse steps. This is not a best practice when negotiating a custodial arrangement for a teen with moderate to severe mental health issues. If the parties are amenable to working on a settlement with the help of my guidance prior to trial date, I will then consult with the child's therapist, the child's educators and any other professional working with the family to provide a framework for a negotiated resolution. Providing the parties with a thorough, well-reasoned and fact supported recommendation prior to trial often leads to a resolution that is more favorable for the parents and child than a ruling issued by a Judge. Mental health issues are not just issues for families who have the economic means to address them. Parents with limited financial means to litigate these issues will also heavily rely on the GAL to assist in resolving these disputes, which can lead to a negotiated resolution. On the other hand, parents with greater financial means to vigorously litigate custody of their teen often exacerbate their child's mental health symptoms. It is especially important in these cases to limit the teen's exposure to the ongoing legal conflict. I do not hesitate to repeatedly remind parents that every day a teen is aware of the contentious custody litigation between them only increases their child's anxiety and depressed mood, and negatively affects their social interactions with peers, their academic performance and their investment in activities they enjoy. The other landmine I try to avoid is the teen feeling as if the outcome of the court case is dependent on their stated position about the custodial schedule, and the belief that they can influence the ultimate decision of the Court. I walk a tightrope by developing a comfortable rapport with the adolescent, allowing them to communicate their stated preference while also reassuring them that the matter is ultimately being decided by adults. While I will make sure that their preference is considered in the ultimate decision as required by the Virginia Code, I remind them that they need to ignore any pressure they may be receiving from an overbearing parent or even their own desire to control the outcome of the case. When this pressure often aggravates a teen's mental health symptoms, I communicate directly to the parents and all involved professionals the negative effects the litigation is having on the child. I then hope that the parties will examine their own communications with the adolescent and how their behavior is affecting their child's well-being. Ultimately, I hope the parties will come to their senses about the devastating effects their litigious decisions are having on their child and reach an agreement without continuing the court case. As more cases involve teens with significant mental health concerns, my role as a GAL is becoming increasingly more active. Gone are the days of meeting with one parent, meeting with another, talking with the child's teacher and interviewing a few collateral witnesses. These days, many more professionals are involved, and not just working with teens but also professional working with parents. Parents are reaching out to professionals to assist in coparenting a teen with mental health concerns, to provide family therapy, individual therapy, reunification therapy—all to support a family parenting a teen with a mental health diagnosis while also going through contentious custody litigation. The number of people I interview in my cases has increased exponentially. However, at the end of the day, my role to advocate and represent the best interests of my ward will always include their voice. Samantha Freed attended Tulane University in New Orleans, Louisiana and received a BA in Medical Ethics. She earned a certificate in Health Law and her JD at the University of Maryland School in 2005. Following a judicial clerkship, she moved to Charlottesville Virginia where she quickly developed a passion for advocating for those in her community who needed it most – the underserved, underprivileged and the most vulnerable of children. In June 2012, she and Bonnie Lepold opened Lepold & Freed, PLLC where she and her partners ran a successful law practice for 10 years. She joined Tremblay & Smith, PLLC in January 2022 as a partner. She regularly serves as a guardian ad litem for children whose parents are going through divorce or custody litigation, and for children who are the subject of child dependency cases involving abuse and neglect, foster care and delinquency matters. She also serves as a guardian ad litem for incapacitated adults. Samantha has represented the Department of Social Services in Madison, Virginia for the past 6 years. She is an active member of the Virginia Trial Lawyers Association and the National Association of Counsel for Children

Citation · Guardian · Legal guardian · Mental health · Political science · Psychiatry · Child Abuse and Trauma · Child and Adolescent Psychosocial and Emotional Development · Ethics and Legal Issues in Pediatric Healthcare · Law · Psychology

• Fragmented Justice

  Open Access•Laura Dodds•Australian Social Work•2025

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