Veazey v. Veazey

Citation560 P.2d 382
Decision Date16 February 1977
Docket NumberNo. 2631,2631
PartiesPamela Ann VEAZEY and T.E.V., Appellants, v. Thomas Marland VEAZEY, Appellee.
CourtAlaska Supreme Court

James H. Holloway, Dillingham, for Pamela Ann Veazey, appellant.

Max F. Gruenberg, Jr., Anchorage, for T. E. V., appellant.

Sandra K. Saville, Anchorage, for appellee.

Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, ERWIN and BURKE, JJ.

CONNOR, Justice.

This is an appeal from an order changing the custody of a 5-year-old girl from her mother to her father. 1 We do not reach the merits of the competing custody claims, because we have concluded that the attorney appointed as the child's guardian ad litem should have been permitted to challenge the trial judge peremptorily. Therefore, we reverse and remand for consideration by a different superior court judge. We take this opportunity to offer guidance to the trial courts, and to attorneys appointed as guardians ad litem, concerning the proper role of such guardians in custody cases.

I

The motion to change custody was filed on April 29, 1975. On May 23, the court entered a pendente lite order which stated, among other things, that:

'Counsel for the parties have agreed and stipulated that MAX GRUENBERG shall be appointed as attorney for (T.E.V., the child), and his services shall be paid for by the Court. A subsequent order will be entered by this Court so appointing said attorney to represent the interests of (T.E.V.).'

On June 19, the court entered another order appointing Mr. Gruenberg '(i)n accordance with the Order entered May 23, 1975.'

On June 25, Mr. Gruenberg moved for a change of judge as a matter of right pursuant to Civil Rule 42(c). The motion was denied as untimely. Rule 42(c) (3) states that '(w)here a party enters an action after the case has been assigned to a specific judge, a notice (of such a peremptory challenge) shall . . . be timely if filed . . . within five days after he appears or files a pleading in the action.' Under Civil Rule 6(a), an intervening Sunday is excluded from the 5-day period. Therefore, if T.E.V. first appeared through Mr. Gruenberg on June 19, the motion was timely. If the order of May 23 was the first appearance, the motion was correctly denied.

We conclude that she did not appear in the action until June 19. The May 23 order, in the form of a stipulation between parties already before the court that T.E.V. would appear through counsel, contemplated that there would be a subsequent order actually 'appointing' Mr. Gruenberg. There was in fact such an order. It was not unreasonable for Mr. Gruenberg to await that subsequent order before filing the motion on behalf of his client. Until the latter order, he was not officially appointed. We therefore hold that it was error to deny the peremptory challenge as untimely.

Appellee Thomas Veazey raises a second argument in support of the trial court's denial of the motion. Under Rule 42(c)(1), 'each side is entitled as a matter of right to a change of one judge . . ..' The rule goes on to state that for these purposes an action has only two sides, even if there are multiple parties. 2 Since Mr. Gruenberg eventually advocated the same position as Pamela Veazey, it is urged that he must be aligned on her 'side' for purposes of Rule 42. Pamela filed an affidavit of disqualification on June 11, which was also denied. Thomas claims that is the one change to which the 'side' was entitled. But the rule states that each 'side' is entitled to one change of judge, not merely to make one such motion. Pamela's motion was denied, so her 'side' had not obtained the single change of judge to which it was entitled, and it was available to T.E.V.'s counsel when he entered the action.

II

Finally, Thomas claims that a guardian ad litem is not entitled to make a motion for change of judge. In connection with this issue, all parties to this action invite us to offer guidance to the bench and bar concerning the proper role of guardians ad litem in child custody cases. We have elected to do so, and conclude that a guardian is entitled to file such procedural motions on the same basis as a party to the action.

The Appointment of Guardians Ad Litem

AS 09.65.130 gives the trial court discretion to appoint an attorney or guardian ad litem for a child in a proceeding 'with respect to his custody, support, and visitation or in any other legal proceeding involving his welfare.' See also Civil Rule 17(b); Children's Rule 11(a). The frequent need for an attorney or guardian ad litem to represent the child or children in their parents' divorce proceeding is the subject of a rapidly growing body of literature, unanimously favorable to such appointments. 3

The threshold question of when it is appropriate for the trial court to appoint a guardian is not before us. Here the court and counsel for both parents agreed to the appointment of Mr. Gruenberg as guardian ad litem. But there will be many custody cases in which a guardian will not be needed, and in such cases neither the statute, the court rules, nor our decisions compel the court to waste its time and money, as well as that of the parties and counsel, in employing one. Some of our previous opinions have dealt with the exercise of trial court discretion on this question.

In Lacy v. Lacy, 553 P.2d 928, 930 (Alaska 1976), we suggested some of the factors which are relevant in deciding whether a guardian ad litem is necessary.

'The decision whether to appoint a guardian ad litem would appear to depend in large measure on the age of the children and the nature of the claim being advanced by the parent or parents.' Id. (footnote omitted)

On the facts of that case, we held it was not an abuse of discretion to fail to appoint a guardian. The children were teenagers who expressed a strong preference to live with their father. Neither parent claimed the other was unfit, nor sought to introduce expert medical or psychiatric testimony.

On the other hand, in Carle v. Carle, 503 P.2d 1050 (Alaska 1972), the judge was required to decide between placing a seven-year-old boy in his father's home with his extended family in a native fishing village, or placing him in the mother's urban home. In remanding, we suggested that the multicultural element might make a guardian ad litem useful in the court's further consideration of the case.

We cannot lay down a definite rule for guiding the trial courts in their decision whether to appoint guardians ad litem. No two child custody cases are alike. Of necessity, the trial court has a considerable amount of discretion in making this decision. The fact that one or all of the custody claimants favor or oppose the appointment is not necessarily conclusive. In Lacy and Carle, supra, and In re P.N., 533 P.2d 13, 17-18 (Alaska 1975) (dependency proceeding), we have offered the trial courts some guidance on the question.

The Duties of the Guardian Ad Litem

We now address the more difficult legal question of the proper role of such a representative when the trial court has decided to appoint one. We have previously explored the responsibilities of a minor's attorney in Wagstaff v. Superior Court, 535 P.2d 1220, 1226-27 (Alaska 1975) (dependency), and RLR v. State, 487 P.2d 27, 33-35 (Alaska 1971) (delinquency). We are aware that answers do not come easily in this area of the law. This is, after all, a subject which taxed the wisdom of Solomon. 1 Kings 3:16-28.

Although the parties in this case did not discuss the issue in their briefs, at oral argument they presented two very different views of what a guardian ad litem should do.

The guardian who represented the child in this case asserted that the guardian should, like any other attorney, be a vigorous advocate of the position of his client, bound by the canons of professional responsibility to represent the child zealously and to the best of his ability.

Counsel for appellee Thomas Veazey urged that the guardian should be more in the nature of an expert investigator and adviser to the court. According to appellee the guardian should investigate the facts, interview the persons involved, and make a recommendation to the court based on his view of the best interests of the child. Under this view the guardian should not take an active part in the hearing or cross-examine witnesses.

We begin our consideration by recalling the standards which guide the court in custody determinations. Between parents, custody is to be awarded according to the best interests of the child. The court may consider the child's preference, if the child is of sufficient age and intelligence. AS 09.55.205. Between a parent and a nonparent, the parent is to be preferred unless placing custody with him or her would be detrimental to the child. Turner v. Pannick, 540 P.2d 1051, 1055 (Alaska 1975); accord, Cal.Civ. Code § 4600 (West Supp.1976); In re B.G., 11 Cal.3d 679, 114 Cal.Rptr. 444, 455-458, 523 P.2d 244, 255-58 (Cal.1974). The best interests of the parent, or detriment to the parent, are not the test.

The literature discussing the detrimental effects parental divorce can have on children is large and growing. It lends credence to the old sayings that as the twig is bent, so will the tree be inclined, and that the child is father of the man. A child may often carry with him for the rest of his life-more than half a century-the effects of a court's custody award. Numerous studies are cited in Note, supra, 27 Hastings L.J. at 918-19; Kleinfeld, supra, 4 Fam.L.Q. at 329-31, 335-36; and Bersoff, supra, 15 J.Fam.L. at 28 n.8. See also J. Goldstein, A. Freud & A. Solnit, Beyond the Best Interests of the Child 7, 111 (1973); 4 Watson, The Children of Armageddon, 21 Syracuse L.Rev. 55 (1969). Although custody decisions are modifiable, not permanent (AS 09.55.205, AS 09.55.220), the harm done to a small child by even a short period of time in an unsuitable environment is not easily undone. Modification, with its costs in emotional trauma as well...

To continue reading

Request your trial
17 cases
  • Hosain v. Malik
    • United States
    • Court of Special Appeals of Maryland
    • 1 September 1995
    ...1021, 109 S.Ct. 1747, 104 L.Ed.2d 184 (1989) (child's attorney should take an active role in presenting evidence); Veazey v. Veazey, 560 P.2d 382, 390-91 (Alaska 1977). Without question, Mahak's attorney did not fulfill her responsibility when she failed to participate at the hearing or at ......
  • Collins on Behalf of Collins v. Tabet, 18488
    • United States
    • Supreme Court of New Mexico
    • 4 February 1991
    ...is to represent his or her ward in the same way that a retained attorney represents his or her client. For example, in Veazey v. Veazey, 560 P.2d 382 (Alaska 1977), the court, while recognizing the guardian's dual roles in the child custody dispute before it, concluded a guardian ad litem a......
  • Moore v. Moore, 89-261
    • United States
    • United States State Supreme Court of Wyoming
    • 12 April 1991
    ...rules were applicable in this instance. A guardian ad litem is the attorney for the minor whom he is appointed to serve. Veazey v. Veazey, 560 P.2d 382 (Alaska 1977). He participates in the proceedings as an advocate. Veazey. See Riley v. Erie Lackawanna R. Company, 119 Misc.2d 619, 463 N.Y......
  • Day-Peck v. Little
    • United States
    • Court of Appeals of New Mexico
    • 4 May 2021
    ...as the attorneys for each competing ... claimant plead theirs." 1991-NMSC-013, ¶ 33, 111 N.M. 391, 806 P.2d 40 (quoting Veazey v. Veazey , 560 P.2d 382, 390 (Alaska 1977), superseded by statute on other grounds , Deivert v. Oseira , 628 P.2d 575, 579 (Alaska 1981) ). "The basic premise of t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT