Cultural and Religious Divesity and Its Importance in Court and Selecting Experts and Guardian Ad Litems
As New Mexicans, it seems like cultural acceptance is something that we take for granted because of our state’s rich diversity and heritage. We presume our judges, experts, and juries appreciate and accept our cultures, but should we take this for granted, especially in family law, where the load-star test for custody cases boils down to the best interest of the children?
Culture is a huge part of raising children because it includes customs, holidays, religion, language, and the way we express appreciation for each other in a family. I recently had a case where one parent predominantly spoke Spanish and the other parent only spoke English. The child knew mostly English and only some Spanish words, such that she could communicate with her father on a basic level. At the conclusion of the hearing, the hearing officer ordered that Father speak English with the child. I presume that the hearing officer believed it was in the child’s “best interest”, but should the father have been ordered to speak English to his child under these circumstances when she knows both languages and Spanish is a part of Father’s culture?
Does the expert or guardian ad litem’s background have an influence on what he or she will ultimately recommend to the court? If you have been lucky enough to avoid the heartache of a custody battle, let me explain what these people have to do with a family law case. If a dispute over custody exists, a court may appoint a psychologist as a custody evaluator. This expert will evaluate the parties and their children and ultimately make a recommendation to the courts on legal and physical custody. A guardian ad litem is a licensed attorney who represents the children in the case and who, at the very least, depending on the scope of the judge’s specific order, will meet with the parties, the children, possibly teachers and therapists, and make a recommendation to the court based on the children’s interests. In the case I described above where the court appointed a guardian ad litem, I specifically chose someone who speaks Spanish. First, my client needs to be able to communicate his points clearly in a language that is most accessible to him. Secondly, my client needs someone to understand his culture because from his point of view, it says so much about who he is and how he would like to raise his daughter.
But this issue is not exclusive to the Spanish speaking cultures. Religion has also become a very important topic. Joint legal custody guidelines state that unless parents agree, the children’s religion shall not be changed from the status quo. So, if your child was baptised in one church, the other parent can not unilaterally baptise the child in another church. Under the constitution, we have religious freedom, but some recommendations are written so closely bordering on limitations of this freedom, that it raises concerns for clients. Some experts or guardian ad litems recommend that religious discussion is limited in the home because it causes conflict between the parties. Is that appropriate? Should the courts be making these recommendations orders because its in the “best interest” of the child?
Family law is an ever evolving practice and these are some of the issues our firm considers before make moves in our clients’ cases and we recommend that you think about these issues too. If you have any questions or comments, please comment below. We look forward to your feedback.