Monday, April 16, 2012

"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!


  1. I can not tell you how many times I heard that saying about my child. At first it meant something and I belived in it. After about the 10th time of hearing it the saying lost its meaning on me.

    1. I agree with you. In the beginning when told that it was for my child or in her interest I believed that this person was really trying to help. It took awhile before before my head realized my heart was wrong. When I began to question and push back I got crazier and crazier responses from the GAL. Sadly when brought to the courts attention it was ignored.

  2. It is an opinion taken as fact in court. It is not a fact. This is what is so frustrating about the process. A GAL is allowed to give an opinion as fact. Yet I am held to giving facts.