Sunday, April 15, 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!

13 comments:

  1. Every time I heard the GAL say that "it was in my child's best interest" I cringed. How could this person who had spent only 2 hours with my daughter know what was in her best interest. Better then myself or even her father. How? This person gave opinions to which the judge took as fact. When I questioned the GAL about her results or recommendations it was a tug of war getting a straight answer from her. I always felt that the GAL was evading my questions.

    ReplyDelete
    Replies
    1. I would love to know what percentage of GAL's ever appear and justify there reports at a Divorce. I had two GAL's over a two year period, four reports were written. At no time did we ever appear in court afterwards, therefore they were never questioned what they wrote. My first GAL withdrew and then made recommendations to the court that everyone assumed we must follow, however since it never made it to court, why were they recommendations heeded, she quit. If a GAL is a expert witness for the judge, everything he or she writes can be questioned and should be backed up with concrete facts, not some hypothesis from information from an unknown source.

      The best interests of my child is based upon what? Parental Alienation should never be rewarded with Primary Custody. If you hinder the other parent or family members from seeing your child because they do not agree with your actions, you are not doing what is in the best interests of your child, you are using your child as a pawn and doing what you think is in your best interests.

      Since my ex wife is disabled because of stress from her work about eight years ago and absolutely has no intention of returning to work because she receives SSI for her, SSI for my son, child support from me, Heating Assistance from the State, WIC from the State. People this is over 30K tax free. If she was to lose primary custody, what does she get? Her SSI. Because you are a prescription drug addict with mental health issues does make you a victim or disabled, you have conveniently chose that lifestyle and played the system because it is easier than going out and having to earn your living without fingerpointing at the world and blaming them for your own shortcomings. This system is broken.

      Delete
    2. You are right that parental alienation is often times rewarded by the GAL. At least it was in my case.

      Delete
    3. I totally agree. Parental alienation is a big problem. I am suffering also from parental alienation. My child is being brainwashed every day by his mother, it seems. It is very sad. And yet, the GAL is clueless as far as this problem is concerned. It does not exist, so get over it and stop complaining. I agree with you, the system is broken.

      Delete
    4. If you don't understand what it is that the GAL is doing – question the GAL. Both before your court date and during the court proceeding.

      It becomes an issue when you do ask the GAL a question and she evades an answer. That happened to me with the GAL assigned to my case. I asked why she recommended a restriction and the question was evaded. I never got a direct answer or the answer I did receive made no sense at all given the circumstances. The GAL in my case caused more problems because she was such a terrible communicator than she was worth. Which in my opinion she was worth nothing. I feel bad for the families that used her in the past or in the future.

      Delete
    5. i am going through parental alienation as well, it is a terrible thing and hurts everyday more and more what my poor kids are going through. As much as i feel i suffer, i feel as though they are suffering more. THIS NEEDS TO STOP! GAL's should not be allowed to choose custody arrangements, or who should be the primary care. I believe this is the judge's job. To hear both sides, to see FACTS and EVIDENCE, not an easy way out to hire someone to visit for a half hour in order to decide what is in "the best interest" for your children. It is sickening to me the way the whole legal system works, and i see more families suffering from this than them actually helping families. My heart hurts for all families and children having to go through this and something needs to be done to REALLY protect our children!

      Delete
    6. PAS (Parental Alienation Syndrome)is gaining acceptance in the courts. The Maine Guardian ad Litem Institute just had a course on it. Many parents will have to endure it. Focus on your child(ren) if you suspect it is going on. The love and attention you provide to them will go a long way then the hurt that the other parent puts out. There is a lot of good resources out there. The Liz Library has some good articles.

      Delete
  2. Looking back I wish I had questioned the guardian more about what was in my son's best interest. I believed that the guardian knew. I was wrong. If something feels wrong go with instinct and don't question your self. You are taking steps for doing what is right for your child.

    ReplyDelete
  3. "Not in the child's best interest" is frequently used as a smoke screen to hide a decision based on the GAL's personal bias. Questioning a GAL's judgement about biased decisions may result in punitive recommendations or GAL judgements. "Has an attitude problem". "Needs anger management therapy." Supervised visits only. Why? "Not in the child's best interest!" Why? "Might be dangerous" What evidence? "Not in the child's best interest" to discuss further!

    Asking further questions about these labels is apt to end discussion "not in the child's best interest."

    It is a magic phrase. Instead of saying, "Get lost, drop dead!" "Not in the child's best interest!" It is empty but much classier.

    How much of this GAL bias gets back to the judge in private 'ex parte' sharing is a very good question.

    ReplyDelete
  4. Lawyers are afraid to criticize even obvious deficiencies of GALs. It might reflect badly and offend the judge who appointed the GAL with very negative consequences for this case and others.

    Some lawyers seem to have "pet" GALs with whom they work frequently and from whom they get favorable results. Team work? Friendship? Partners? A winning combo? You decide.

    Does the Chief Justice know this sort of thing? Unlikely. It requires a consumer perspective and no consumers have been involved in previous GAL reform efforts.

    ReplyDelete
  5. It seems as if some judges have "Pet" GALs too.

    ReplyDelete
  6. It appears to be a very incestuous system at every level. "Best friends" talking to "best friends". It desperately needs "consumer input" to keep it open and honest.

    ReplyDelete
  7. The system needs oversight. The Judicial Branch doesn't know what's going on.

    ReplyDelete