Courts routinely appoint a guardian ad litem (GAL) for children whose best interests are to be determined by a court of law. The Latin term ad litem means for the lawsuit. When a child is caught in a highly contentious custody dispute, the courts can appoint an independent attorney or mental health professional to represent the best interests of the child.
Guardians ad litem represent children who are not able to represent their own interests during legal proceedings. In many cases that involve child custody and child abuse, a child needs an advocate. For example, in a child custody case where a biological parent is credibly accused of compromising the best interests of his or her own child (or children), a GAL will advocate for restricting or terminating visitation with that child.
Every state has GAL laws intended to protect children who are in legal duress situations. The federal law surrounding GALs applies for children in courts with federal jurisdiction over minors, including immigration matters.
Federal Rule of Civil Procedure Rule 17
According to Gaddis v. United States,
[The] power to appoint guardians ad litem pursuant to [Federal Rule of Civil Procedure] Rule 17(c) is important not only to ensure that the minor’s rights and interests are fully protected in cases where the minor is otherwise represented and there may be conflicts of interest, but also to ensure that the minor has proper access to the federal judicial system at all. . . . Such fair access to the judicial system by minors and [legally determined] incompetent persons is enhanced if the district court exercises not only the power to appoint guardians ad litem, but also, as Rule 17(c) expressly directs, to “make such other order as it deems proper for the protection of the infant or incompetent person.” . . . This additional power is necessarily required so the district court can effectuate its appointment of a competent, independent guardian ad litem.
Zero Tolerance: The Institutional Separation of Families at the US Border— Good-bye GALs
On April 6, 2018, Attorney General Jeff Sessions announced the Trump administration’s directive toward undocumented people attempting to seek lawful asylum from Mexico’s northern border into the United States. Sessions was quoted by Joshua Barajas in a PBS News Hour article as saying that anyone “illegally entering this country will not be rewarded, but will instead be met with the full prosecutorial powers of the Department of Justice.” Barajas goes on to write, “in a memo, Sessions directs US attorneys offices in southwest states along the border to prosecute all cases flagged for illegal entry, ‘to the extent practicable.’” This government policy imputes criminal intent to minors, even those too young to form criminal intent. Outrageous!
On May 7, 2018, according to the PBS New Hour report, Sessions tightened the administration’s noose of irresponsibility and malfeasance with his announcement of a
“zero-tolerance” policy for illegal entry into the U.S.: “If you cross this border unlawfully, then we will prosecute you. It’s that simple,” he said. According to the policy, any migrant crossing the border beyond the official ports of entry will face criminal prosecution, including asylum seekers with children.
The Trump administration’s policy of strong-arming people seeking asylum from gang threats, domestic violence, and political oppression seems to be clearly focused on deterring people from legally seeking asylum as allowed by federal and international laws. The PBS News report, quoting Sessions about the zero-tolerance policy, brings to light the insidious aspects of a knee-jerk authoritarian government blinded to the impact on families, and especially children brought in tow for safety:
“If you smuggle illegal aliens across our border, then we will prosecute you. If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law.” He [Sessions] adds: “So if you’re going to come to this country, come here legally. Don’t come here illegally.”
What happened to the protections afforded to children by Rule 17? What happened to the assurance that minors have proper access to the federal judicial system? Why do we hear reports about toddlers appearing before immigration judges on their own behalf? What’s all this about children being held in cages and in cruel and unusual conditions? The Trump administration is insensitive to the basic needs of children and is empathically bankrupt.
Trump Hides behind Inhumanity with a Deceitful Tweet
The Washington Post quotes Trump as saying the following at a May 16, 2018, round table on sanctuary cities in California:
We have to break up families. The Democrats gave us that law. It’s a horrible thing where you have to break up families. The Democrats gave us that law and they don’t want to do anything about it.
The same report has Senator Tim Kaine’s May 27, 2018, Twitter response to Trump: “Yet this administration is separating kids from their parents and unable to account for 1,500 lost children! Shame.”
Separated Children—By the Numbers
It’s difficult to capsulize the number of children recently separated from mothers and fathers. According to Maya Rhodan’s July 2, 2018, Time magazine article entitled “The Facts about Trump’s Border Policy” (see page 31): “Between May 5 and June 19,  more than 2,300 children were separated (by the U.S. border patrol), according to the Department of Homeland Security (DHS).”
This obscene chapter in insane governance is happening now, for us all to witness, without the administration’s citing any laws that require the splitting of migrant parents and children—because there are no such laws! Is Trump’s policy simply another petulant, childish tantrum because his idea for building a wall on the southern border is mired in opposition?
Institutionalized Child Abuse Is harmful
An advanced degree in mental health is not necessary to know that, as noted in a May 2013 Psychology Today article by Edward Kruk, PhD, “children and parents who have undergone forced separation from each other in the absence of abuse, including cases of parental alienation, are highly subject to post-traumatic stress, and reunification efforts in these cases should proceed carefully and with sensitivity.”
Child development specialists are sounding the alarm about the effects of separation and loss on children’s development. Depending on the age of the child at separation, long-range effects of the loss can be emotionally indelible. See child development specialist Susan Hols’s report for a detailed account of child development deficiencies that can occur due to Trump’s policy of family separation—a problem that is exacerbated and continues today because of the government’s failure to keep track of children and their stateside parents pending prosecution or deportation or of parents already deported and leaving their children behind.
Evidence of child abuse in this current environment is inevitable. In a July 17, 2018, HuffPost article entitled “Drinking Toilet Water, Widespread Abuse: Report Details ‘Torture’ for Child Detainees,” Angelina Chapin reports some of the abuses suffered by children being held by the United States that are alleged in a new court filing. These allegations include
- Feeding children frozen food
- Not providing children with a toothbrush or toothpaste
- Physical and verbal assault of children
- Untenable sleeping conditions
- Unsanitary drinking water
According to the HuffPost article, “the Center of Human Rights and Constitutional Law filed a report in a federal court in Los Angeles” on July 16, 2018, written by Peter Schey, executive director. The article goes on to quote Schey:
“The treatment of these children amounts to torture,” Schey told HuffPost, adding that the situation has become worse under the Trump administration. “We see a policy of enforced hunger, enforced dehydration and enforced sleeplessness coupled with routine insults and physical assaults.”
The Trump administration has created a haunted house for children whose parents are seeking to remove them from dangerous and life-threatening gangs and governments. In its effort to deter rightful and lawful petitions for asylum, the government is hurting children. Where are the guardian ad litem protections of Rule 17 of the Federal Rules of Civil Procedure? Answer: lost in the racist world of the abuser-in-chief and his cohorts.
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 According to the American Immigration Council, “the United Nations 1951 Convention and 1967 Protocol define a refugee as a person who is unable or unwilling to return to his or her home country, and cannot obtain protection in that country, due to past persecution or a well-founded fear of being persecuted in the future ‘on account of race, religion, nationality, membership in a particular social group, or political opinion.’ Congress incorporated this definition into U.S. immigration law in the Refugee Act of 1980. As a signatory to the 1967 Protocol, and through U.S. immigration law, the United States has legal obligations to provide protection to those who qualify as refugees.”