Case Document
June 14, 2002

Re: Standards for attorneys appointed as guardian ad litem

May 1, 2002

The Hon. Harry L. Carrico
Chief Justice, Supreme Court of Virginia
Chair, Judicial Council of Virginia
100 North Ninth Street
Third Floor
Richmond, Virginia 23219

Re: Standards for attorneys appointed as guardian ad litem

Dear Mr. Chief Justice:

I am writing to you in your capacity as Chair of the Judicial Council of Virginia. It is my hope that the Judicial Council will be able quickly to correct a problem we recently discovered in the mandatory continuing legal education received by Virginia guardians ad litem. We were dismayed to learn that the course identifies husband-led, religious families as one of three basic family types more likely to be abusive or neglectful of their children. This is a matter of great concern to our organization and to our member families in Virginia. We request that the course notebook and video tape be corrected before the next class, which is scheduled for June 13, 2002, and that correct information be sent to all attorneys who have been trained under the current course materials.

  1. Introduction.

    Home School Legal Defense Association ("HSLDA") is a national advocacy organization that has as its primary purpose the protection of the God-given right of parents to control the education of their children. Our national office is located in Purcellville, Virginia. While we accept into membership any family desiring to home school, regardless of religious beliefs, HSLDA is a uniquely Christian ministry.

    HSLDA presently has over 70,000 member families nationwide and almost 4,000 member families in Virginia. A large percentage of our member families are deeply religious and home school their children based on sincerely held religious conviction. Indeed, many of our Virginia members are excused from compulsory attendance under Virginia's religious exemption statute. From time to time, member families come to the attention of school or juvenile authorities, often due to a misunderstanding of home school law. Every year our attorneys resolve dozens of such cases in Virginia and around the country before they make it to the juvenile courts. Occasionally, however, a petition is filed and a guardian ad litem is appointed. Because of the important role guardians ad litem play in the juvenile justice system, it is essential that they be correctly trained, not to stigmatize families because of their religious faith and practice.

  2. The Current MCLE Incorrectly Identifies Religious Families as More Likely to Abuse or Neglect their Children.

    As you know, the General Assembly has tasked the Judicial Council, in conjunction with the Virginia State Bar and the Virginia Bar Association, with adopting standards for attorneys appointed as guardians ad litem. The Judicial Council has mandated that attorneys must attend a 7-hour MCLE, which must include instruction in "Characteristics of abusive and neglectful families and of children who are victims."

    Under this heading, the current course outline, published by Virginia CLE in November of 2001, identifies "three basic family types" as having the characteristics of an abusive or neglectful family: (1) the "rigid and controlling family type;" (2) the "inadequate family type" (e.g., drug and alcohol abusers); and, (3) the "religious and authoritarian family type." The video tape also presents this material.

    The outline describes the religious and authoritarian family type as follows:

    A strong focus on male entitlement, with strong church involvement. Parents are frequently elders or ministers in their church, and they use their 'religious authority', as well as scripture, to maintain control (and secrecy, if incest is taking place).

    Many of our member families are organized around the Biblical principle that the husband is the head of the home. See, e.g., Ephesians 5:22-23 ("Wives, submit to your own husbands, as to the Lord. For the husband is head of the wife, as Christ is head of the church.") Many of our members have a strong involvement in their local church and are in a leadership position within that church. Indeed, several of our senior staff at our national office in Purcellville are ordained ministers, elders in their church, or leaders in other supporting ministries like The Gideons, International. Central to the religious beliefs of many of our members is that scripture is inspired by God and is useful for the instruction of children.

  3. The MCLE's Classification is Factually Inaccurate.

    Classifying religious families alongside drug and alcohol abusers as more likely to abuse or neglect children is factually inaccurate. The National Longitudinal Study of Adolescent Health has shown that children in intact, two-parent families are less likely to fall prey to many of the social ills of our times, including poverty, domestic violence, drug, alcohol and tobacco abuse, and early onset of sexual activity. Additionally, teenagers who regularly attend religious services are at even lower risk.

    We are aware of no other jurisdiction that teaches its guardians ad litem or lay volunteers that husband-led, religious families are a greater risk of abusing or neglecting their children than other families. The National Court Appointed Special Advocates organization ("NCASA") teaches its lay volunteers and attorney guardians ad litem that involvement in a faith community is a family strength and a resource . Significantly, NCASA trains its volunteers that family-related factors leading to a greater risk of abuse or neglect include stepparent, blended, and single parent families. The overwhelming consensus is that religion is a positive factor, not an indicator of abuse.

  4. The MCLE's Classification of Husband-led, Religious Families is Unconstitutional.

    The MCLE's classification of husband-led, religious families as more likely to abuse or neglect their children violates the Free Exercise Clause of the First Amendment, and the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution.

    This unfair and inaccurate classification is tantamount to religious profiling. It stigmatizes families who have chosen to follow traditional, time-honored family and religious practices. It poisons the objectivity of the guardian ad litem in fulfilling the vital role of investigator, witness and advocate for the child's best interests, to the detriment of the entire juvenile justice system.

  5. Conclusion.

    We are confident that you will agree with us that the Courts of Virginia are the last places where stereotyping, whether racial or religious, should be allowed. We request that the Judicial Council correct the guardian ad litem course materials, including the notebook and the video tape presentation before the next course is given on June 13, 2002. We also request that the Judicial Council contact any attorney that has been trained under the inaccurate and unconstitutional materials to correct any misapprehensions caused by equating drug addicts with husband-led, religious families as more likely to abuse or neglect their children.

It is our sincere hope that this problem can be resolved quickly. If you have any questions, please do not hesitate to call me at 540-338-5600.

Very respectfully yours,

J. Michael Smith

The Hon. Joanna L. Fitzpatrick, Chief Judge
The Hon. Charles E. Poston, Chief Judge
The Hon. Diane McQ. Strickland, Judge
The Hon. Paul M. Peatross, Jr., Judge
The Hon. F. Bruce Bach, Chief Judge
The Hon. Donald A. McGlothlin, Jr., Chief Judge
The Hon. Randall G. Johnson, Judge
The Hon. Suzanne K. Fulton, Judge
The Hon. William R. Moore, Jr., Judge
The Hon. James F. Almand, Virginia House of Delegates, Co-Chair, House Courts of Justice
The Hon. William J. Howell, Virginia House of Delegates, Co-Chair, House Courts of Justice
The Hon. Kenneth Stolle, Member, Senate of Virginia, Chair, Senate Courts of Justice
The Hon. S. Vance Wilkins, Jr., Speaker, Virginia House of Delgates
Mr. William G. Broaddus, Esq.
Mr. Allen C. Goolsby, III Esq.
Mr. Robert N. Baldwin, Ex-Officio Executive Secretary
Mr. J. Edward Betts, Esq., President, Virginia Bar Association
Mr. Michael A. Glasser, Esq., President, Virginia State Bar
Mr. Gary Wilbert, Executive Director, Virginia CLE

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