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noting that if the legislature intended the statute to include a certain provision, it would have included it in the statute
Summary of this case from People v. Interest of S.M-L.Opinion
No. 93SC625
Decided December 5, 1994. Opinion Modified and, as Modified, Petition for Rehearing DENIED January 17, 1995.
Certiorari to the Colorado Court of Appeals
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS.
Seth A. Grob, The Children's Legal Clinic, Denver, Colorado, Attorney for Petitioner.
Ivonne Lee Hartley, pro se, Westminster, Colorado, Respondent.
Ronald Glenn Hartley, pro se, Englewood, Colorado, Respondent.
Eugene P. Falco, Litchfield, Connecticut, Attorney for Amici Curiae The National Task Force for Children's Constitutional Rights; The Legal Action Project of the National Committee for the Rights of the Child; The National Association of Counsel for Children; Child Advocacy Law Clinic, University of Michigan Law School.
We granted certiorari to review an unpublished opinion of the court of appeals, In re the Marriage of Ronald Glenn Hartley, and Ivonne Lee Hartley, and concerning Eric Hartley, No. 92CA1177 (Colo.App. August 19, 1993) (not selected for official publication). At issue in this case is the right of a minor child to be represented by the attorney of his choice in a custody dispute arising under the Uniform Dissolution of Marriage Act (UDMA). We reverse the court of appeals' holding that the issue was moot because of a subsequent custody decision by the trial court and also hold that a minor child's interests are adequately represented under the UDMA.
I.
On November 1, 1989, Ronald Hartley (father) filed a petition for dissolution of the marriage from his spouse, Ivonne Hartley (mother). In 1989, the father requested the trial court to award him sole custody of their two minor children, Chad, a fourteen year old, and Eric, a twelve year old. In her response to the petition, the mother requested that she be awarded custody, maintenance and child support. On January 24, 1990, as a result of a stipulation between the father and the mother, the trial court appointed an attorney (guardian ad litem or GAL) to represent the interests of the two children, pursuant to section 14-10-116, 6B C.R.S. (1987 1994 Supp.).
This case concerns only the younger son Eric.
Section 14-10-116 states:
Representation of child. The court may, upon motion of either party or upon its own motion, appoint an attorney to represent the interests of a minor or dependent child with respect to custody, support, and parenting time. The court shall enter an order for costs, fees, and disbursements in favor of the child's attorney. The order shall be made against any or all of the parties; except that, if the responsible party is indigent, the costs, fees, and disbursements shall be borne by the state.
As this provision makes clear, the person appointed to represent a child under the UDMA must be an attorney. Although the statute does not refer to the attorney as a guardian ad litem or GAL, the parties have used that terminology, and we also do so in this opinion.
A hearing was held on February 15, 1990, and the parents were awarded temporary joint custody of both children. On June 25, 1991, a trial commenced to resolve the permanent custody issues. On that day, the parents entered into a stipulation, consistent with the recommendations of the GAL, granting sole custody of the two children to the mother with visitation rights for the father. The trial did not conclude on that day, however, and was continued until December 4, 1991.
On September 29, 1991, Eric sent a letter to the GAL in which he expressed frustration over the representation of his interests. Eric explained that he did not want to live with his mother under any conditions, that he felt physically and psychologically abused by her, and that he felt the GAL was not representing his interests to the trial court. Eric further stated that he was terminating the GAL's services. Eric sent another letter to the trial court judge, along with a copy of his letter to the GAL, in which he explained that he had fired his GAL because of the handling of his case.
On October 7, 1991, the trial court entered a temporary order requiring that Eric be permitted to live with his father until further order of the court. On November 4, 1991, the trial court entered an interim order awarding sole custody of Eric to the mother with modified visitation rights for the father. On December 4, 1991, the trial on the permanent orders concluded, and the trial court awarded permanent sole custody of the children to the mother.
Eric continued to experience substantial difficulty in his living arrangements with his mother after the trial on the permanent orders. A copy of a summons and complaint in the record indicates that the mother's live-in boyfriend was criminally charged on December 15, 1991, with assaulting Eric. Although charges ultimately were dismissed, numerous other incident reports in the record detail various police and social services responses to domestic altercations between Eric and his mother. In response to these problems, the trial court ordered a custody evaluation for Eric on April 10, 1992.
Custody evaluations are permitted upon motion by the court or either party under § 14-10-127, 6B C.R.S. (1987 1994 Supp.).
On the same day as the order for a custody evaluation, the Children's Legal Clinic (CLC) filed an entry of appearance on Eric's behalf and asked the court to change sole custody of Eric from the mother to the father. The mother opposed CLC's entry of appearance for Eric on the grounds that an attorney had been appointed to represent Eric's interests. She also filed a motion opposing the motion to modify the custody orders.
On June 15, 1992, the trial court denied CLC's motion to enter its appearance on Eric's behalf. The trial court held that an attorney had been appointed to represent Eric's interests with respect to custody, support and visitation and that another attorney was unnecessary. The court also held that the GAL is bound to the best interests criteria set forth in section 14-10-124, 6B C.R.S. (1987 1994 Supp.), under which the wishes of the child were simply one of the elements to be considered. Finally, the trial court denied a motion by CLC to permit Eric to proceed in forma pauperis. The trial court resolved the custody arrangements on November 5, 1992, when it awarded sole custody to the father and suspended all court-ordered visitation between Eric and his mother.
Eric, represented by CLC, appealed to the court of appeals from the trial court's order denying CLC's entry of appearance. In an unpublished decision, the court of appeals declined to render a decision on the merits because the issue presented by Eric was moot. The court of appeals held that since Eric was now in his father's custody and his mother was not granted any visitation rights, Eric received what he desired, and CLC's attempted entry of appearance for purposes of modification of custody was a moot issue. Thereafter, we granted Eric's petition for writ of certiorari to review the court of appeals' decision.
We disagree with the court of appeals and hold that the issue is not moot. On the merits of the claim, we hold that a child is adequately represented by the statutorily-appointed attorney and that such representation satisfies all constitutional requirements.
II.
The court of appeals did not reach the merits of this case because it found that the issue of Eric's representation was mooted by the trial court's ruling awarding custody to Eric's father. Appellate courts will not render opinions on the merits of an appeal when the issues presented become moot because of subsequent events. American Drug Store, Inc. v. City and County of Denver, 831 P.2d 465, 469 (Colo. 1992); Van Schaack Holdings, Ltd. v. Fulenwider, 798 P.2d 424, 426-27 (Colo. 1990). "A case is moot when a judgment, if rendered, would have no practical legal effect upon the existing controversy." Van Schaack Holdings, Ltd., 798 P.2d at 426. Because we find that a judgment would have a practical legal effect, we hold that the issue is not moot.
The issue of Eric's right to representation by counsel is not moot because he is still a minor subject to the jurisdiction of the trial court in matters of custody, support and parenting time. A court retains jurisdiction over child custody issues under the UDMA until the child reaches the age of emancipation. See Koltay v. Koltay, 667 P.2d 1374, 1376 (Colo. 1983) (attainment of age of 21 creates presumption of emancipation); Gonzales v. District Court, 629 P.2d 1074, 1076 (Colo. 1981) (court has continuing jurisdiction over a dissolution of marriage case).
Contrary to CLC's assertion, the age of emancipation is normally 21 years of age. See § 2-4-401(b), 1B C.R.S. (1980); In re Marriage of Huff, 834 P.2d 244, 249 (Colo. 1992) (holding that the General Assembly intended to give trial court jurisdiction over custody, support and visitation issues until the age of twenty-one); In re Marriage of Plummer, 735 P.2d 165, 166 (Colo. 1987).
In this case, CLC filed an entry of appearance on Eric's behalf and simultaneously filed a separate motion to modify custody of Eric. The entry of appearance was not expressly limited to the motion to modify custody. In the April 10, 1992, custody hearing, CLC stated that it did not intend to represent Eric in the same capacity as the GAL:
I think clearly we do have a conflict here, and Eric has contacted the guardian ad litem on numerous occasions asking for certain remedies.
One of those remedies is to ask for a change of custody, and Mr. Prentiss [the appointed attorney] is under no obligation to follow direct wishes as he represents — direct wishes as he [Mr. Prentiss] represents his [Eric's] best interests. Therefore Eric needs an attorney for this Court to hear what he wants.
CLC's statement and the unrestricted nature of its motion demonstrate that CLC seeks to represent Eric's wishes whenever they conflict with the appointed attorney's opinion. Indeed, even the GAL conceded that such ongoing representation might be helpful.
In the April 10, 1992 hearing, CLC asserted, "the child is the one who is most directly impacted by any decision [the trial court] makes." (emphasis added).
The GAL stated:
It's clear if the Court talks to Eric that I don't mouth to the Court his position on this. My recommendations have often been against what his desires are. The other side of the coin is it's fairly obvious that counsel [CLC] is being paid for by Mr. Hartley. I guess we could clarify but Eric Hartley doesn't have his own funds. Mr. Hartley is paying the Children's Legal Clinic to pay the attorney. It may make my job easier if he's involved because then Eric will have someone telling the Court what he wants to do and representing his position, and then I'll go ahead and proceed to represent what I believe is in the child's best interests.
(emphasis added).
Furthermore, because of the nature of this case, it is likely that the issues of custody, visitation, and support will arise periodically until Eric is emancipated. The record reflects that Eric has moved frequently between his mother and his father since the beginning of these proceedings in 1989. If the custody issue arises again, another dispute between the GAL and Eric as to Eric's "best interests" is probable. As such, the representation of Eric's "interests" in the underlying proceeding has not concluded and, even though the single motion concerning his custody was resolved, the right to representation is still at issue.
Also, although not reflected in the record, the mother asserts in her brief to this court that Eric returned to her custody in November 1993.
III.
Having determined that this issue is not moot, we will address the substantive issues presented by Eric but not reached by the court of appeals. Eric makes various arguments to show that he has a statutory right to choice of counsel and independent representation of his wishes. We will address each argument in turn.
A.
Eric asserts that the right to retain counsel of choice and to initiate proceedings regarding his welfare is a statutory right provided under section 14-10-123.4, 6B C.R.S. (1987), which states:
Rights of children in custody matters. The general assembly hereby declares that children have certain rights in the determination of custody, including the right to have such determination based upon the best interests of the child.
Eric argues that the "rights" described in section 14-10-123.4 at the very least include the right to participate through chosen counsel and to initiate proceedings. We disagree.
The General Assembly enacted section 14-10-123.4 after the UDMA became the law of Colorado. See Ch. 110, sec. 1, 1987 Colo. Sess. Laws 574, Act Approved March 26, 1987. The 1987 changes to the UDMA were initiated to reform the system of joint custody. Although the hearings are in large part missing or inaudible, the existing portions of the House hearings demonstrate that the legislature's main concern was to control domestic violence while maintaining family relationships. The primary area of discussion focused on reformation of existing joint custody laws to achieve this goal. Legislative Tapes of House Judiciary Committee Hearings, January 13, 1987, at 3:41 p.m.
The legislature also was concerned about protecting the medical needs of children. To this end, the legislature added a portion to section 14-10-123.5, stating that:
In the event of a dispute about the necessity or the type of medical treatment provided to the minor child or children, either parent shall be allowed to obtain necessary medical treatment for the minor child or children without being in violation of the joint custody order or in contempt of court.
§ 14-10-123.5, 6B C.R.S. (1987).
The legislature added text to the "best interests of the child" determination:
The court, upon the motion of either party, or upon its own motion, may order joint or sole custody after making a finding that joint or sole custody would be advantageous to the child and in his best interests.
Ch. 110, sec. 3, 1987 Colo. Sess Laws. The legislature also added paragraphs to address abuse and uncooperative parents. See ch. 110, 1987 Sess. Laws.
The changes and the limited history of the 1987 amendments to the UDMA in Colorado demonstrate that the "rights" of the child with which the legislature was concerned were the rights to family relationships and the right to be safe from physical, psychological, and emotional harm. See generally, Lashawn v. Dixon, 762 F. Supp. 959 (D.D.C. 1991) (children have right to "safe placements in which they will not be harmed" and that harm includes physical, psychological and emotional harm).
The rights protected by the statute do not include the right for children to participate through chosen counsel. In no part of the audible portions of the hearings is the issue of independent representation of the child's desires discussed as a "right" of a child in a custody matter. Furthermore, the context of the additions demonstrates no intention to allow for additional legal representation of a child's wishes.
B.
Eric next argues that section 14-10-124(1.5), 6B C.R.S. (1987), provides statutory authorization for the right of a child to choose counsel in a custody dispute. Section 14-10-124(1.5) states, in relevant part:
The court shall determine custody in accordance with the best interests of the child. The court, upon the motion of either party or upon its own motion, may order joint or sole custody after making a finding that joint or sole custody would be advantageous to the child and in his best interests. In determining the best interests of the child, the court shall consider all relevant factors, including:
(a) The wishes of the child's parents as to his custody;
(b) The wishes of the child as to his custodian; . . .
§ 14-10-124(1.5), 6B C.R.S. (1987). Eric argues that "a prerequisite to the trial court considering the wishes of the child is for these wishes to be presented in a coherent and compelling manner." Eric also contends that neither a GAL nor a court can safeguard full representation of the child's wishes. Thus, he reasons that he must be afforded counsel of his choosing to effectuate the statutory purpose.
This argument is premised on a faulty assessment of the roles of the GAL and the court in determining and protecting the child's best interests. In considering the GAL's role, we recognize that the relationship between an attorney and a child client is not the same as that between an attorney and an adult client. In re Marriage of Barnthouse, 765 P.2d 610, 613 (Colo.App. 1988). As this case demonstrates, a child's attorney acts both as guardian and as advocate. See, e.g., Leary v. Leary, 627 A.2d 30 (Md.App. 1993) (discussing the differing obligations of an attorney as a guardian and an advocate).
The Rules of Professional Conduct address these conflicting obligations. Specifically, an attorney must abide by Rule 1.14, which sets forth the guidelines for representation of a client under a disability. The comment accompanying the rule states:
Rule 1.14 states:
(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, disability, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client/lawyer relationship with the client. (b) Not only can the mental, physical, or other condition of the client impose additional responsibilities on the lawyer, the fact that a client is impaired does not relieve the lawyer of the obligation to obtain information from the client to the extent possible. (c) A lawyer may seek the appointment of a guardian or take other protective action with respect to a client only when the lawyer reasonably believes that the client cannot act in the client's own interest.
Colo. Rules of Prof. Conduct, Rule 1.14 (1992).
The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. When the client is a minor or suffers from a mental disorder or disability, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, an incapacitated person may have no power to make legally binding decisions. Nevertheless, a client lacking legal competence often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being. Furthermore, to an increasing extent the law recognizes intermediate degrees of competence. For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody.
Colo. Rules of Prof. Conduct, Rule 1.14 cmt. (1992). The rule and the comment establish that a minor child may have the ability to express an opinion concerning his or her best interests and that an attorney has the responsibility to consider the child's opinions in representing the child. However, the child is not competent "to make legally binding decisions." Those often difficult decisions must be made by the attorney representing the child, whether that attorney is the GAL or any other attorney. To the extent that Eric is claiming a right to require any attorney to represent his views without question, no attorney could provide such representation of a minor.
In addition to the ethical duties imposed by the Rules of Professional Conduct, the GAL is also statutorily required to consider the child's desires when representing the child in a custody proceeding. Section 14-10-124; Barnthouse, 765 P.2d at 612. "The attorney should represent the children actively and present to the court all the evidence he can marshal concerning the best interests of the children." Barnthouse, 765 P.2d at 612. However, the attorney is not simply to parrot the child's expressed wishes. Id. Thus, the obligations of an appointed attorney in a custody proceeding require a higher degree of objectivity than must be exercised by an attorney representing an adult. Id. Nonetheless, the attorney represents the child, albeit in a manner different from the representation of an adult. See, e.g., State in Interest of D.M., 790 P.2d 562, 565-67 (Utah App. 1990) (discussing situations meriting appointment of a Guardian ad Litem and effectiveness of GAL representation).
The representation is also different simply because of the status of a child. One other reason an attorney is appointed rather than selected by the child, for instance, is because a child does not have the capacity to contract or sign a retainer agreement. See generally Doenges-Long Motors, Inc. v. Gillen, 138 Colo. 31, 328 P.2d 1077 (1958).
Further, the child's wishes are ascertained directly by the court without the filter of the GAL's representation. When the court evaluates the best interests of the child, it is required to consider the wishes of the child. § 14-10-124(1.5). To ascertain the best interests of the child, the court may interview the child concerning his wishes in addition to hearing the appointed attorney. § 14-10-126, 6B C.R.S. (1987).
Finally, this case demonstrates that Eric's wishes were in fact fully represented at the child custody hearing. The GAL repeatedly advised the court of Eric's position, including his displeasure with the GAL's recommendations. The court interviewed Eric on several occasions to ascertain Eric's desires. Any further representation of Eric's wishes would be unnecessary because, under existing statutory safeguards, Eric had a full and fair opportunity to be heard.
C.
Eric also contends that the right to obtain his own counsel for the divorce proceeding is implied by the statute. We disagree.
First, Eric observes correctly that no provision in the UDMA precludes a child from obtaining his own counsel to directly advocate his position to the court. However, to have another attorney represent the wishes of the child in a dissolution proceeding would be duplicative and an unnecessary burden on the court. Numerous avenues exist for the child's wishes to be represented, including the Rules of Professional Conduct, the best interests determination, and interviews with the court. In fact, the UDMA mandates that the child's wishes be considered in any best interest determination. See § 14-10-124(1.5). Thus, the need for an additional attorney to represent Eric in these proceedings is unnecessary.
Second, Eric contends that in order for the UDMA to be harmonious with other statutes, this court should infer an independent right to counsel. People v. Wiedemer, 852 P.2d 424 (Colo. 1993). For instance, Eric cites section 19-2-402(2)(a), 8B C.R.S. (1986 1994 Supp.) (appointment of a GAL under the temporary custody detention and shelter provisions of the Children's Code), section 19-1-105, 8B C.R.S. (1986 1994 Supp.) (right to counsel in addition to a GAL under the general provisions of the Children's Code), and section 19-1-111(2)(a), 8B C.R.S. (1986 1994 Supp.) (appointment of GAL under the general provisions of the Children's Code) as support for legislative recognition of a child's right to counsel, including the right to choose counsel. We find this argument unpersuasive. We recognize that provisions of the children's code permit the court to appoint an attorney as guardian ad litem and another attorney to represent the child in a dependency and neglect action. However, we reject Eric's argument that statutory harmonization requires us to find implied authority for the same dual representation of a child in custody proceedings. Had the legislature intended to allow such representation in custody proceedings, it would have included a provision similar to that in the children's code. Instead, the legislature determined that a child's interests are sufficiently represented through a GAL.
Section 19-2-402(2)(a) states:
If the juvenile or his parents, guardian, or other legal custodian requests counsel and the juvenile or his parents, guardian, or other legal custodian is found to be without sufficient financial means, or the juvenile's parents, guardian, or other legal custodian refuses to retain counsel for said juvenile, the court shall appoint counsel for the juvenile.
Section 19-1-105 states:
(1) All hearings, including adjudicatory hearings, shall be heard by a judge or magistrate without a jury, except as otherwise provided by this title. (2) The right to counsel shall be as provided in this title; except that, in all proceedings under the "School Attendance Law of 1963", article 33 of title 22, C.R.S., the court shall appoint counsel or a guardian ad litem for the child, unless the child is already represented by counsel. If the court finds that it is in the best interest and welfare of the child, the court may appoint both counsel and a guardian ad litem. Nothing in this title shall prevent the court from appointing counsel if it deems representation by counsel necessary to protect the interests of the child or other parties.
(emphasis added).
Section 19-1-111(2)(a) states:
Appointment of a guardian ad litem. The court may appoint a guardian ad litem in the following cases: (a) For a child in a delinquency proceeding where: (I) No parent, guardian, legal custodian, custodian, relative, stepparent, or spousal equivalent appears at the first or any subsequent hearing in the case; (II) The court finds that a conflict of interest exists between the child and parent, guardian, legal custodian, custodian, relative, stepparent, or spousal equivalent; or (III) The court finds that the best interests of the child will be served by an appointment.
In the present case, Eric's best interests, including his wishes, are all considered when the GAL makes representations to the court. The GAL's representation is sufficient to maintain consistency in the representation of children.
D.
Eric argues that he is entitled to intervene to protect himself and his interests, pursuant to section 14-10-123(2), 6B C.R.S. (1987).
Section 14-10-123(2) states:
Notice of a child custody proceeding shall be given to the child's parent, guardian, and custodian, who may appear and be heard and may file a responsive pleading. The court may, upon a showing of good cause, permit the intervention of other interested parties.
Under the statute, when good cause is shown, a third party may intervene in the custody proceedings. § 14-10-123(2). Certainly, one of the persons most interested in a child custody dispute is the child. See Veazey v. Veazey, 560 P.2d 382, 390-1 (Alaska 1977) ("There is no person more interested in a child custody dispute than the child."); Wendland v. Wendland, 138 N.W.2d 185, 190-1 (Wis. 1965) (holding that in a hotly contested custody dispute, a guardian ad litem may be necessary to ensure representation of a child's interests); J.A.R. v. Superior Court, 877 P.2d 1323 (Ariz.App. 1994) (identifying need for independent counsel in a hotly contested custody dispute because of strong interest of child). However, the GAL's function is to represent the interest of the child in the custody, visitation, and parenting time proceedings. Under our interpretation, the child is not, then, an "other" interested party because the child is already fully represented in the proceeding. Since both the GAL and the court are required to consider the wishes and interests of the child, no good cause exists for further intervention from the child in a determination of custody proceeding.
Eric also argues that sections 15-14-203, 6B C.R.S. (1987) (protection of persons under disability section of the probate code) and 19-5-202(2), 8B C.R.S. (1986) (allowing a minor to petition the court in an adoption proceeding) are evidence of an implied right to petition the court in custody matters. He draws additional authority for this position from In re Marriage of Conradson, 604 P.2d 701 (Colo.App. 1979) (holding that a child has standing to seek support from parents). Indeed, a child has the right to petition the court through counsel. However, the proper means for petitioning the court is through the appointed attorney. The GAL can enforce any support, visitation or parenting time obligations through the proceeding. Because the GAL can petition the court for the minor, the child's rights are adequately served.
Section 15-14-203 states:
Objection by minor of fourteen years or older to appointment of guardian. A minor of fourteen years of age or older may prevent appointment of his guardian from becoming effective or may cause a previously accepted appointment to terminate by filing with the court in which the will is probated or the written instrument is filed with a written objection to the appointment before it is accepted or within thirty days after notice of its acceptance. An objection may be withdrawn. An objection does not preclude appointment by the court in a proper proceeding of the person appointed by will or written instrument or any other suitable person.
Section 19-5-202(2) states that "A minor, upon approval of the court, may petition the court to decree an adoption."
III.
Finally, Eric argues that, if he has no statutory right to counsel of choice, his constitutional rights are violated. Specifically, he contends that his constitutional due process interest in family relationships and right to court access are violated when he is denied counsel of choice. We reject his constitutionally-based argument as well.
Eric points to In re Gault, 387 U.S. 1 (1967), People v. Spencer, 524 P.2d 1084 (Colo. 1974), and Selby v. Jacobucci, 142 Colo. 52, 349 P.2d 567 (1960) as support for the proposition that he has a constitutional right to counsel. Reliance on these cases is misplaced. Gault, Spencer, and Selby addressed the Sixth Amendment right to assistance of counsel in delinquency cases. The Sixth Amendment to the United States Constitution states,
In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.
U.S. Const. Amend. VI (emphasis added). It is important to note that the constitutional right to assistance of counsel is limited to adult proceedings which are criminal in nature and equivalent juvenile cases. Because dissolution of marriage cases cannot be equated to criminal proceedings, the Sixth Amendment right to assistance of counsel does not extend to proceedings under the UDMA.
A.
Eric asserts that his due process liberty interest in family relationships is unprotected by the GAL. He argues that the system developed under the UDMA does not provide adequate procedures to safeguard his due process interest.
Our state and federal constitutions protect both minors and adults. In re Gault, 387 U.S. at 13 ("Neither the Fourteenth Amendment nor the Bill of Rights is for adults alone."); Tinker v. Des Moines Community Sch. Dist., 393 U.S. 503, 511 (1969) ("Minors, as well as adults, are protected by the Constitution and possess constitutional rights.").
The Fourteenth Amendment to the constitution guarantees that no state shall "deprive any person of life, liberty, or property without due process of law. . . ." U.S. Const. Amend. XIV. One of the liberty interests protected by this amendment is the right to choose family relationships. See Santosky v. Kramer, 455 U.S. 745, 758 n. 9 (1982) (the interest in family relationships is a fundamental liberty interest); Stanley v. Illinois, 405 U.S. 645, 651 (1972) ("integrity of the family unit has found protection in the Fourteenth Amendment," citing Meyer v. Nebraska, 262 U.S. 390, 399 (1923)). The right to family relationships applies reciprocally between parent and child. Smith v. Fontana, 818 F.2d 1414, 1418 (9th Cir. 1987); Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977). Because a custody determination greatly affects family relationships, Eric has an affected liberty interest.
To determine the amount of process due when a liberty interest is affected, the United States Supreme Court has adopted a three part test:
(1) the private interest affected by the official action;
(2) the risk of error through the procedures used and the probable value of additional or substitute procedural safeguards;
(3) the government's interest, including the fiscal and administrative burdens that additional requirements entail.
Matthews v. Eldridge, 424 U.S. 319, 335 (1975); see also Van Sickle v. Boyes, 797 P.2d 1267 (Colo. 1990).
Eric argues that his private interest may be affected dramatically by this official action because he may be deprived of any interaction with one of his parents through the custody proceeding. However, the effect will not be as dramatic as asserted. As continually recognized in this opinion, the official action requires a consideration and evaluation of Eric's wishes, and the court retains jurisdiction to adjust the custody determination as changing circumstances may require. Thus, because a child is given the opportunity to express his wishes and the court is required to factor in those preferences in determining custody rights, the effect is not substantial.
The risk of error through existing procedures under the UDMA is low. The GAL's sole duty is to protect all of the interests of the child with respect to custody, support and parenting time, including the child's liberty interests. As such, Eric's interests are fully protected by the GAL through the UDMA procedures and Rules of Professional Conduct. See discussion, supra, at III(B). The court must then evaluate the determination of the GAL. When making such evaluations, the court must consider the integrity of the family and the quality of life that would be best for the child, taking into account the child's own wishes. See § 14-10-124. The child's wishes are an important factor in both the appointed attorney's and the court's determinations. Thus, the risk of a wrongful deprivation of this interest is very low.
The interests of the government in maintaining the current procedure are great. Adding another attorney to the case would overburden the courts and the parties by increasing costs and causing delays without significantly increasing the fairness of the proceeding. The trial court recognized the difficulty of protracted litigation with numerous attorneys and determined that it could evaluate the best interests of the child without adding another attorney.
B.
Eric also asserts that he has a right of access to the courts which is unprotected when proceeding through a GAL. He asserts that when a GAL disagrees with his views, he does not have effective access to the court through a legal representative because no one will file a claim on his behalf. As such, Eric contends that he is entitled to counsel of his own choosing to ensure effective access to the courts.
The United States and Colorado constitutions guarantee a right of access to the courts. Colo. Const. art. 6; U.S. Const. Amend. XIV; see also Boddie v. Connecticut, 401 U.S. 371 (1970) (recognizing a constitutional right of access to courts); State Farm v. Broadnax, 827 P.2d 531, 534 (Colo. 1992) (holding that the right of access to courts is located in the Due Process Clause of the Fourteenth Amendment and the First Amendment's provision securing the right to petition the government for redress of grievances and holding that the Colorado Constitution has an express right of access to courts).
However, as we recently held in Allison v. Industrial Claims Appeal Office, No. 93SC663, (Colo. November 15, 1994), the constitutional right to access does not create a substantive right; it provides a procedural right to a judicial remedy whenever the General Assembly creates a substantive right under Colorado law. Thus, the "access" right guarantees access to the courts when an individual has a viable claim for relief. We hold that Eric has no substantive right to choose his own counsel. As such, Eric's right of access is not violated because he has no unrepresented substantive rights.
V.
In conclusion, we hold that the issue of additional representation for Eric is not moot. However, representation of the child's interests under the UDMA is adequate to satisfy all constitutional and statutory requirements. Since the child's interests are fully represented in the dissolution proceeding through the GAL, no right to intervene exists with regard to custody disputes. Eric's interests will be represented by the GAL until he reaches the age of emancipation.
For these reasons, we reverse the judgment of the court of appeals with instructions to affirm the trial court's denial of entry of appearance.
JUSTICE LOHR concurs in part and dissents in part. JUSTICE ERICKSON and JUSTICE KIRSHBAUM join in the concurrence and dissent.