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!
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