GALs and the Safety of Our Children

In the hands of a GAL are our Children Really Safe?

It strikes us that if one uses a "in the child's best interest" standard, that an important baseline consideration is: "Is the child safe?"  Clearly there are additional issues like the child's well being, its opportunities for normal, physical and psychological growth and development, its social and moral development, but central to society's interest is safety.

 We have been appalled by reports of GAL recommendations that propose assigning a child's custody to a parent with an extensive history of alcoholism, prescription  drug abuse and felonious legal issues - especially when there are other, safer, better choices.  In these cases there has been no assessment of child's safety or of the older idea of "parental fitness".  The new, hip view is that at all costs the GAL should avoid "social or cultural bias".  In bending over backwards to meet the avoidance of social or cultural bias, the "broad-minded" GAL must give due consideration to high risk parents, who might have been considered "unfit" in previous years.  Has the parent showed up drunk for an interview with the GAL?  Have they dilated pupils or do they stagger?  If not observed by the GAL, and if they say they are clean, they are innocent until proven guilty.  It is simple, blind denial, and it places "the best interest of the child" at serious risk.

We feel that the Judicial Branch should demand primary, professional  information to back up these recommendations.  What do the physicians, psychologists, drug counselors, parole officers have to say?  What about family members (on both sides)?  What about independent psychological testing for fitness to parent?  What about an in depth assessment of the biases in favor of not showing bias to cultural or social issues?

There is another concern that comes out of "the child's best interest" standard, mediation.  Isn't mediation a conflict of interest for a GAL?  If a GAL stands for "the child's best interest", how can that GAL broker a "deal" with the parents?  Doesn't "best interest" have to be separate from: "I want; you want?"  Carving up the child for the parents is not necessarily in "the child's best interest!"  Parents are frequently told by GALs that whatever they agree to will be recommended to the court.  Mediation is one of the "mission expansions" that has gradually been added to the GAL's statutory role.  It generates huge billable hours.  Can a GAL, as an arm of the court, be an unbiased mediator?  In our opinion the legal power behind a GAL precludes a free, open exchange necessary for true mediation.  The GAL is "armed" by his/her appointment in these transactions, and wearing a "gun" precludes free discussion.

As old teachers are wont to say to children, "We can do this the easy way or the hard way, the choice is up to you."  But GAL clients aren't children!   

We ask ... is this 'modus operandi' "in the best interest of the child" or in that of the GAL? 

The choice is up to you.

A case for Informed Consent when using GALs

One of the issues that is very frequently expressed when you talk with those who have been exposed to a Guardian ad litem in a child custody situation is: "I didn't know what to expect." Or ... "At first I thought it was me, that I was missing something or didn't understand." Another common statement is: "I thought it was my fault." Then ..."It gradually dawned on me that there was something wrong on the GAL's end." All of these comments speak to confusion, surprise, lack of understanding and, finally, recognition and anger on the part of clients that can be common ingredients in a troubled Guardian ad litem experience.

Yes, there is information on a state web site, which spells out what a Guardian ad litem is supposed to do. It is an empty standard without any enforcement, and it is frequently discovered by the client after the process has started, after a commitment has been made, and open-ended  contracts signed.  And ... you find yourself trapped!. Lawyers frequently fail to explain what the boundaries of a GAL are and what they do.  GALs themselves mostly just jump in and start working and may just give cursory instruction as to what they do. The client is left with huge confusion, imagining that this lack of orientation is simply the standard- if primitive- way of doing business with the judicial system. The sad thing is they are absolutely right.  

To avoid the client's sense of confusion and entrapment, to avoid the shock of an unpleasant surprise, the Judicial Branch should mandate a policy of informed consent as a foundation for a client's relationship with a GAL.

Informed consent must meet certain minimal standards. "It is based on a clear appreciation and understanding of the facts, implications and future consequences of an action." as defined in Wikipedia.  In the client/GAL relationship, the client needs a practical road map of how the GALs actions will proceed.  Who is the GAL representing: the clients, the child, a lawyer, or the judge?  What are the boundaries of GAL confidentiality in general, and does it apply to so-called group supervision with other GALs?  Are there any confidentiality boundaries that can't be broken?    Where do a GAL's  'ex parte' communications with the judge, both those announced and secret ones fit?  How about GAL fees?  How often will bills be rendered?  Will chargeable GAL activities be identified or itemized clearly or not?   Is their a "cap" on a GALs fees?  How can one appeal a bill?  There also needs to be the revelation by a GAL: "I operate without any oversight."

These are only a small part of the topical issues that any GAL's client might need to understand in order to give "informed consent" for a GAL to proceed.  Most important to clients as the case proceeds is: How do I get rid of this GAL?  The pragmatic answer is: "You probably can't", coupled with "how much money do you have to initiate a motion to remove a GAL?"  What will it cost to do an appeal?  How many cases make it to appeal and how successful are appeals?      

For a court to appoint a GAL without any "informed consent", in our opinion, can be seen as an act of unrestrained judicial force.  It thrusts an unregulated GAL, with no oversight, into the center of families, already experiencing the interpersonal pain of a divorce.  At present, there is no quality assurance for this GAL.  It is a totalitarian act and needs the most thoughtful, careful (and transparent) justification for such a use of power in each case, if there is a desire to avoid abuse - or the appearance of abuse.

We are in touch with growing numbers of GAL clients who are bearing witness to the serious personal devastation caused by no anticipatory guidance for the GAL process. No informed consent!

Conflicts between branches of government over GAL oversight

We believe the one big, overriding issue for GAL reform is the total lack of oversight of their work. This issue has been identified by several other important groups before - but in thinking more deeply about this issue - it is more than just a lack of oversight in the form of supervision. It is that most (if not all) GALs are licensed professionals - lawyers, social workers, and such. They are in professions that have legally mandated oversight by their various boards of licensing, yet these professional boards seem to be disabled by current laws governing GALs  from taking any normal corrective action on complaints from the public.

The code of ethics and standards that apply to GALs under their licensed professions - somehow don't apply when they are in the role of GAL. As an example, a social worker working as a GAL may use his/her Social worker status on his/her professional letterhead for all purposes. The social work letterhead markets the GAL as a social worker to the public, yet if he/she violates code of social work ethics under that umbrella - while serving as a GAL - he/she has immunity, by the mere fact of being a GAL. The professional board is prevented from acting on its oversight function. The best it can do in an egregious situation is dismiss the case "without prejudice".

It seems to us that the very experienced licensing boards should have a major role in GAL oversight - since they are already overseeing and licensing these professionals in their base professional capacity.  They should not be disabled from so doing by law.

The licensing board and the Judicial Branch might ask themselves - why shouldn't the same ethical and other professional standards apply to both professional situations simultaneously? Any additional regulatory requirements arising out of the GAL role should be relatively easily added to the licensing boards mandate. The lines of professional accountability are currently very unclear for the consumer, who may incorrectly assume that a GAL who is also a Social Worker or other professional (lawyer, doctor) will be held to the professional standards of their base profession. And they are not. When functioning as a GAL, they are free from any accounting to their professional boards.

The current law governing GALs allows someone in serious violation of the standards and ethics of their professional licensing board to continue to function as a GAL, protected from any corrective action by their board just by the fact of being a GAL. The law currently disables the professional standards of the licensing boards. An unprincipled GAL is professionally bullet proof.

The judicial Branch needs to correct this appalling structural malfunction "In the best interest of children"!

5 Roadblocks to GAL removal

In any custody case there is the possibility that the GALs work and ethics come into question. You are at the point of no return and start to file a complaint. The process is uncomplicated as described on various states Judicial websites.  Asking people associated with the judiciary and you will be directed to the Guardian ad litem complaint process. Reading it is straightforward and seems rather simple in its approach.

Looks though can be deceiving.

If you decide to file a complaint against a GAL be prepared for a process that is anything but clear and open.The reality of GAL removal is that it is nearly impossible (where records are kept they show a minimum of success. In Maine for instance only 2 GALs have been removed in the last 5 years) and will cost you thousands of dollars. Let alone the countless hours invested.


Here are some of the road blocks to removing a GAL:

1. You are an outsider and have no connection to the working relationship that those in Maine's court system have with each other.
2. The Judge has a working relationship with your GAL. In some cases the Judge has been working for years with this person. 
3. The Judge is biased towards your GAL because of this working relationship.
4. Because of this bias the Judge is not – repeat not – a neutral party in any dispute you may have - right or wrong - with your GAL.
5. Any complaint filed against a GAL is a reflection on the Judge and his/ her management techniques.

Because of this working relationship it becomes very hard for a valid complaint to make any headway in the legal process. The judge who is supposed to be a neutral figure in your dispute in actuality is not. The judge may be biased because of the working relationship he/ she has with the GAL associated to your case. Breaking this relationship is near to impossible and does not allow for corrective action against a GAL that may be doing something wrong.

The biggest roadblock to GAL removal is the Judicial system. Oversight and management has to be removed from the judicial branch.

The Money pit that is Guardian ad litem fees and invoices

Those who work in the Guardian ad litem industry, live in an extremely unusual, court-protected, economic world. Once they are appointed to a case by the court, they have a well-paid, court-protected cushy job. For the most part they charge between $100 to $200.00 per hour on average. They ask for a substantial cash advance of two or more thousand dollars before they start, which means that they are paid for services in advance.  They are very hard to remove from a case, once started.  Even if clients try to remove them, their continuance under client protest  is virtually insured in court  by the well-worn mantra, "in the child's best interest".  While many do detailed monthly invoices; many do not.  Nor are they under any obligation to itemize the activities for which they charge, if it is "not in the child's best interest".  Billing clients by GALs  is strictly a matter of do your own thing. 

It is a consumer protection nightmare to say the least.  There is no consumer protection.  The only thing protecting a consumer is the individual integrity of the GAL on the case.  If you have a unprincipled  GAL, you are just out of luck.  However, GALs themselves are well-protected by the court.  There is no ceiling on the limits of their bill, and they can run up charges for unidentified services that can top 25% of the parties annual income.  You dispute the bill, you ask for identification of charges, you want to know what created the exorbitant bill.  Can't tell; won't tell: "Not in the child's best interest"!  The court effectively protects the GAL's secrecy, and you will never know.  Unlike any other service in this country, you can be ordered to pay in excess of 25% of your annual income, for unidentified charges.  Could a doctor, a lawyer or a carpenter get away with this sort of billing? No because you would take them to court.

Financial problems and divorces frequently go hand in hand.  Divorces often come on the tail end of marriages with financial disasters.  Finances are disrupted, homes in jeopardy, debts are out of control, credit is broken or non-existent .  A GAL invoice for over 25% of one's annual income (or more), adds additional problems.  The cost of a divorce can easily run to $25,000.00 or more.  A GAL's fees can frequently exceed $12,000.00.  And ... these are conservative figures.  How do the parties finance these expenses?  Beg, borrow or steal.  Mortgage, if you can, or ask friends and family to help.  Frequently it falls to retired parents on a fixed income taking out a mortgage on their home.   There are no standards for GAL charges, for tailoring fees to incomes and debts of parties, for the outer limits of GAL charges (ceilings).  Those trapped as service recipients get hammered financially. 

Why do GAL charges go off the chart?  This is an important question that should be investigated by the Judicial Branch.  Our hunch is that excessively high GAL charges are the result of GAL "mission creep", services that go beyond the statutory regulations.  Getting to know the child, obtaining and reviewing records, talking with professionals and families, and other data collection activities, along with appearing in court are not apt to generate huge fees that go beyond retainers.  It is the social service type of activity, the counseling, the mediation attempts that are riddled with GAL role conflicts of interest and that gobble up hours and raise fees. The GAL is a business and the idea behind a business is to generate revenue. For a GAL can bill with no limits and have the court force the parties involved to pay.  Restricting GALs to  statutory activities only would be a start at cutting costs.

We strongly urge that the Judicial Branch enact ceilings on GAL charges, that they mandate a financial scale for charges that takes into account  the economics of the parties and their ability to survive and to be responsible to their children, that GALs do monthly invoices, that they identify charges and that their records be available to back up charges.  We also urge that GAL "mission creep" be curtailed and statutory activities be enforced. 

There is a desperate need for consumer protection in this industry!

"Not in the child's best interest" is a misleading standard for GALs!

Although we may get hammered by opposing opinions (from GALS), someone has to say it.  The current standard for child custody decisions, "in the child's best interest," is misleading and bogus!  It presumes that a Guardian ad litem using this standard has been anointed by God (and the appointing judge) and that the ensuing GAL determinations are made objectively and above the contentious fray of a marriage dissolving.  It assumes that one person, a GAL, can read all of the many tea leaves and read only the child's "best interest" through the tangle of tea leaves at the bottom of the tea cup.  It assumes that society will be better for such a ritual and such a formula.

     It is wrong.  And ... the whole notion of "in the child's best interest" as a court standard is deeply flawed conceptually, factually and legally.  It also provides an irrefutable, unarguable weapon for any miscreant GAL (or court) who chooses to abuse it.  It is the ultimate authoritarian refuge that can be used to preclude any further exploration or discussion of issues.  We are aware of reports of numerous abuses of "in the child's best interest".  There is the refusal to disclose GAL case records, the refusal to provide reasons behind complex, seemingly irrational GAL decisions, the refusal to respond to client challenges about regulatory violations, the refusal to identify charges on a GALs invoice of charges for service.  When challenged for enlightenment, the reply: Open discussion is "Not in the child's best interest!"  Sometimes this refusal to share data is reenforced with, "It might be dangerous."   End of discussion.  Over and out!

     This kind of authoritarian claim that a GAL, alone, using whatever resources, can determine what is "in the child's best interest", is misleading.  The child's wishes may be denied, and parental rights may be ignored.  Further there is no way of correcting the actions of a delinquent GAL making such highly subjective decisions, other than a very expensive, time consuming, slow moving appeal to a higher court.  Don't like it? Take your money and do an appeal to a higher court which created the unsupervised GALs in the first place.  No wonder there are so few appeals.  It is not about a lack of grievances, as some suggest.  It is about the lack of money and energy and time to pursue a complex corrective action.

     In the hands of a delinquent GAL, the idea of "in the child's best interest" can be a devastating weapon that brooks no defense.  It implicitly says: "Because I'm the Mommy, and I say so!"  "Mommy" has no place in common law and shouldn't be setting custody standards in court!

     Along with 'ex parte' discussions, "in the child's best interest" makes GALs virtually bullet proof legally!

Upcoming Hearing on Guardian ad Litem reform

Location     Maine Supreme Judicial Court 205 Newbury Street, Portland, ME  (207) 822-4146 ‎ ·

   Date     May 31, 2012
   Time     4:00 PM


The court is scheduling a meeting for Thursday, May 31 at 4 pm in the Cumberland County Courthouse to hear from interested parties and the public. A notice will go up on our web page before the end of April. We hope you will be able to attend and share your views. This is an important meeting regarding guardian ad litem reform and we need your support. More details and directions to follow.

Do GAL advocate for the best interest of the child or not?

A comment from a parent frustrated with the process of dealing with Guardian ad Litems. The second to last paragraph speaks volumes to the issues of what happens if the GAL makes a poor recommendation (this has been highlighted). Please send your stories and what state you are from to nationalgalalert@gmail.com.

 

It is pretty simple either the GAL advocates for the Best Interest of a Child or they do not.

Parental Alienation.  Definitely happens often.  The parent that practices this should never be rewarded with primary custody of the child when they/and their lawyer have practiced this by design.  In my case, I did not see my son for five months over the holidays.  Stopping my unsupervised visits for no plausible reason, however since they court had not made any ruling about visitations and let the GAL schedule it, nothing stopped her from stopping visits entirely when first GAL withdrew from my case.  Did not see my son for five months, had to hire second GAL to do this, there is no authority from the court.  When the GAL withdrew, I voiced my concern to the judge that granted her withdrawal that there was no current plan for visits in place, I was then put on a Trailing Docket for my divorce and told that it would be discussed then, I did not know at that time that a Trailing Docket continues to trail and trail, in my case 18 months.  At no time did I ever appear before a Judge, therefore if I waited for the Judge, I still would not be seeing my child.

Substance Abuse.  Drugs/alcohol/prescription drug abuse.  If you are drug or alcohol dependent, should you be able to have primary custody without even admitting you have a problem or getting treatment?  If the other parent is clean and sober and not breaking the law in anyway, don't you think that the best interests currently would be with the sober parent.

Mental Health:  If you have not worked because of Stress/PTSD or what have you for let us say eight years and have a long history of Suicide Ideation, Self Mutliation (Cutting) in front of your adult children that you have been blue papered for mental health issues and the Judge denies you request for Discovery of Non-Financial Information (Mental Health/Prescription Drug Abuse) because it give the other person an unfair advantage at trial, then perhaps it should be investigated.  I was assured that the GAL would investigate this over and over.  If you are prescribed an opiate like Oxycontin and driving your child around, you are drug dependent because you cannot quit Opiates overnight and you are breaking the law and putting your child at unnecessary safety risks.

Child Abuse/Neglect.  Over and over your child has accidents.  Did they happen because you abused that child or did they happen because you were sleeping under the influence of prescription drugs and wasn't supervising your child as you should be?  Child is burned with what appears to be a cigarette, child has multiple incidents of huge bruises that you have no idea about until you bath him or you are made aware of them by someone else like I was, you decide there seems to be a trend here and file PFA only to be told that pictures can be altered,  Nothing written about it in the GAL Report.  File incident with DHHS.  No calls, no follow up, you later find out the complaint was unsubstantiated.

There is plenty of blame to go around, however it comes down to the basics question.

What is in the best interests of this child?

In my case, it was bureaucracy, big brother (email monitoring), breech of contract (failure to  interview appropriate people in a timely manner or investigate the issues that were presented) a court system that doesn't ensure that Status Conferences are being done in the case or a Trailing Docket that never hears your case in a timely manner because they are too busy with too many cases.

So if my ex-wife is driving under the influence of her prescription drugs and nods off or judgment is clouded by the effects of those drugs and god forbid my child is seriously injured or killed.  Who is responsible.  The Mother, the Guardian Ad Litem that recommended she get primary custody, the lawyers?  I don't know the answer and I don't want to know.  I can tell you right now, Quasi Immunity would definitely be questioned and it has been questioned by me for the last two years.

The loser is the child in my case.  The system is broken because there is no accountability of the Guardian Ad Litem at this time.

Maine and other states receive 'F' on Guardian ad Litems

Maine needs outside consultation for GAL reform

  In thinking about repairing a broken GAL system, we feel that one should start with a look at previous perceptions of the problem.  OPEGA's 2006 Report on Guardian ad litem Oversight is an excellent place to begin.  It is thoughtful, non-partisan and thorough.  It is very detailed and explicit.  In 112 pages it says that there is no oversight of GALs, and it details many complaints from the grass roots about the system.

     The 2008-9 Judicial Branch report on the same topic says much the same thing in speaking about the GAL oversight problem.  It was the work of a committee that had 7 GALs, several of whom were members of the Maine Guardian ad Litem Institute board.  It proposed an elaborate investigative process that gently investigated problems and gently helped to repair malfunctioning.  It cost $500,000 and was understandably refused by Maine's legislature.

     There was also the report in 2009 by First Star, a children's advocacy group, and by The Children's Advocacy Group of the University of San Diego School of Law.  These collaborating organizations gave Maine- and 6 other states- an "F" in its legal protection of children.  Finally, there is Maine's Chief Justice, Leigh Saufley, who spoke at a hearing of the Joint Committee of the Legislature on the Judiciary, declaring that Guardians ad litem had no oversight and promising to come up with a plan for the legislature's Judiciary Committee by October.

     That there is a GAL problem of unknown dimensions is undeniable.  What to do about it and who the architects of reform might be are of huge concern to those children and families affected by the system and any future reform plans.

     We would recommend that the Judicial Branch seek formal, outside consultation from relevant professionals in those states, which are recognized as leaders in the legal protection of children.  The use of outside experts allows for extrication and detachment from the always enmeshed politics of a small state like Maine.  It might also bring the best thinking available to the problem-solving of a complex systems problem: GALs, their roles and functions, their legal boundaries, their management and oversight, and the systems and data collection that would functionally promote these aims.

     At all cost, we need to avoid another planning effort like that of the judicial branch in 2009. One in which the planners included 7 "foxes" working on  the security plans for the "hen house".

Let's end all 'ex parte' parties between Judges and GALs

In our view, this is our most important recommendation for Guardian ad litem reform.  There would be an enormous positive ripple for children, families and courts from this no cost change in statutory regulation prohibiting all 'ex parte' between judge and GAL.

     But ... exactly what is 'ex parte' communication between GALs and judges?  Though it is complained of from Maine to California, most people don't know about it, even those families who may wonder why they are getting blindsided by apparently out-of-nowhere judicial decisions, when they appear in court for a hearing.  'Ex parte' communications of any sort are exclusionary, private, out-of the courtroom communications between one of the parties and a judge, and they are almost universally frowned on by the traditions of common law.  The reasons for 'ex parte' communications being frowned on are because a private conversation with a judge is liable to impair judicial impartiality, the very cornerstone of judicial fairness.  It presents one viewpoint only, that of the GAL- in our consideration of this issue, and, as we know, family matters are complex and there are multiple viewpoints that need open consideration.

     More importantly, 'ex parte' communications between a GAL and judge can function as a hearing before the real courtroom hearing.  Maine statutory regulations permit GALs to do 'ex parte', with the proviso that the parties are informed after the fact about the topic of the discussion.  But ... there are exceptions to the requirement to inform the parties.  'Ex parte' may be done secretly, if the GAL claims that such secrecy would be "in the best interests of the child"!  This subjective formulaic claim of "best interest" is one that is wide open to corrupt practices and abuse.

     'De facto', secret 'ex parte' communications can transform the GAL into a paid, unaccountable, secret informer of the court.  It is reminiscent of the distasteful human rights violations of the Inquisition and the m.o. of secret informers during the French Revolution's reign or Terror.  It is anti democratic, it goes against common law traditions that respect fairness and openness in a trial.  Other states are addressing this issue, and their stances are worth considering.  It is an abhorrent practice that needs to end.

     But it will not end as long as one aspect of the GALs role is conceptualized as "the eyes and ears" of the judge!  Judges should not use GALs as private eyes!

We want to hear your story about the Guaridan ad Litem experience

We want to hear your Guardian ad Litem experience. Has you and your family been the victims of the GAL assigned to your case? Has your Guardian ad Litem failed to do any of the following?

1.   Provide bills that are transparent and easy to understand?
2.   Made comments (opinionated and or unsubstantiated) about you or your child in court or out.
3.   Has had 'ex parte' communication with the presiding Judge.
4.   Has not met with your child or has met for only a limited time.
5.   Has not contacted, met or has limited contact with your child's educators.
6.   Has not contacted, met or has limited contact with your child's caregivers on a regular basis.
7.   Has not contacted, met or has limited contact with your child's medical providers.
8.   Has shown bias.
9.   The GAL has not been open in his/ her communication with both parties of the custody.
10. Has written in defense of the other side.

I am from Maine where there is a huge problem with the Guardian ad Litem system. There is also a problem on the national level. I am looking for your stories to publish, to let the government in your state know about the issues, to make those in the Federal government aware that there is a problem. Please help us help you.