Monday, October 22, 2012

The Judicial Branch says, "No Problem" with Guardians ad litem. We say ...

    It may seem unusual to post a letter of resignation, but this letter has already received wide circulation by the Judicial Branch, so we felt the public should see it too.

Chief Justice Leigh Saufley
Maine Supreme Court

Dear Chief Justice Saufley,

    It is with regret that I am submitting my resignation from the Judicial Branch Committee reviewing the Rules and Regulations for Guardians ad litem.  I had initially hoped that, my experience in hearing from many who have been affected by malfunctioning Guardians ad litem, and also from my contacts with many in Maine government (and elsewhere) that I might be able to add a meaningful perspective to the problems facing  the committee. At this point, after participating quite actively in some very pleasant discussions of two Judicial Branch committees addressing Guardian ad litem reform, I feel that I am such a micro minority that my input in the final analysis is perceived as essentially irrelevant, or even unintentionally insulting to the Guardians ad litem and those who support them.

    The problem that I experienced is that the 20 people in the first committee - largely representatives of the “divorce industry”- and the 12 or so in the second, quite honestly and sincerely do not see a problem with the Guardian ad litem program as it stands. They see no problem with the complaint process either.  It poses something of a problem -solving paradox: 19/20 and 11/12 see no problem yet they are the dominant participants in a process allegedly aiming to make things better. The unasked question is: better for whom - for he public or for the “divorce industry”?  It is difficult to correct a problem, if the majority on a committee genuinely don’t believe there is a problem. The oft quoted, “only two complaints in two years”, seems to be the rationalization for this belief. For many discerning people, these numbers (and the structure behind them) hardly tell a very convincing story, but, as you know, sadly, there are no other numbers. So absent your statistics and other data, absent a belief that there is a Guardian ad litem problem, I am a voice crying in the wilderness, and the sole dissenter in every attempt at consensus.

    The only answer that I know of to this particular conundrum is outside consultation from a reputable consulting organization that will look at the big picture, including rapidly growing consumer dissent. The public needs to be included. Such consultants should recommend a design that fits Maine’s children and families, one that addresses some of the issues noted below.

    Our experience with a growing number of Maine families, has convinced us that there is a malfunctioning GAL program from a human perspective. It tells us that there are lots of as yet uncounted statistics out there. But you have to have modern IT methodologies to gather the numbers, you have to listen to those who are the living statistics and basically, you have to want to know. And its the complete absence of quality assurance, the absence of consumer protection (and the attitudes that go with each of these) that many find so troubling.

    The problems that we would address to a consultant are: the absence of a standard job description for a Guardian ad litem, the need for Rules and Regulations that guide the functions of the job description, training that under girds both the job description and the rules and regulations and that reflects the difference between the differing knowledge, skill and experience of GALs from vastly differing backgrounds, the need for a ‘practicum’, or internship, for GALs, so that they are not using the public as experiential guinea pigs as they gain practical experience. The need for oversight of a program with a vast impact on Maine’s children and families. These issues all speak to the need for adequate up-to-date data for a system of program management. It can be done; other states do it.

    It can’t be accomplished by those who see “no problem”.

    All of these management items need grounding in the experience of actual, real life, service users. You need a board of consumers to participate in every aspect of design to keep it from being out of touch with exclusively top down views. It will be useful in educating the “divorce industry” professionals that there is a problem, when there is a problem. And, frankly, the problem right now is destined to get bigger until it is acknowledged as a problem and those affected by the problem are involved.

    In addition to the problems of defining and building GAL identity briefly noted above, there are serious issues relating to process. Is statutory immunity for GALs in the public interest? What substitute does the public have if they are denied the ability to pursue claims of harm to themselves or their children from a GAL? Isn’t “quasi judicial immunity” one of several provisions that undermine accountability of GALs and that protect incompetent practitioners? Then there is the very troubling issue of ‘ex parte’ communications between GAL and judge, which in their permitted secret form allow for a “Star Chamber process”, a trial apart form the main trial that corrupts any pretense of due process.  ‘Ex parte’ makes the GAL into a court informer, paid by those against whom he/she is informing. It uses information obtained in interviews with parties in ways that indirectly cause them to testify against themselves. It urgently needs recognition as a problem and it needs correction. The Rules and Regulations for GALs governing confidentiality are currently so broad as to be meaningless. There is no profession in America that is as permissively unregulated of privileged and other sensitive client information. GALs have no functional restrictions governing confidentiality the way rules are currently written.

    All of the above are clearly “not a problem” for GALs or others who work in the “divorce industry” but I can assure you they are a huge problem for the public that is forced to pay for them!  Understandably, the above issues are  threatening to those who work in the “divorce industry”. They strike at the core of their profession and their income, but there are devastating numbers on the other side of the equation. Fees that impoverish families that cause bankruptcy, that cause the loss of a home, that impair the future education of children- these are a part of the heartbreak in the GAL experience. There is also the use of the court’s most brutal techniques for GAL bill - collecting that may be legal, but it is no less repulsive for being legal.

    To solve these problems with 19/20 participants or 11/12 who don’t see a problem, is a request for self-regulation with no impetus (or expectation?) for self-change. As a minority of one, I cannot be that much needed impetus for change. I can be much more effective in working for GAL reform outside of these committees, and can do so, very actively, once free of the current committee obligations without feeling compromised by two opposing commitments.

    Many thanks for affording me a window on this process.


    Jerome A Collins, MD

If you have had issues with a Guardian ad litem please contact us at

Thursday, October 18, 2012

Maine Voices: Plan for complaints about guardians ad litem protects them, not kids

Portland Press Hearld

Since spring, there has been a growing grassroots movement in Maine, advocating that the judicial branch reform its guardian ad litem (GAL) program. None of this is new. There have been earlier, well done, state government reports that politely, but directly point out problems and call for program change.

Current guardian ad litem problems are not just "noise" from grassroots troublemakers. There is substantial noise from within the government itself. Guardian ad litem problems urgently demand reform.

Full story: Portland Press Hearld

Saturday, October 13, 2012

Guardian ad litem Job description

A job description is like the foundation of a house. If you have a good and well built foundation the house that sits upon it will also be strong with few problems. If you have a poor foundation (or none), your house will, shift and shake, lack stability and have a lot of problems. Job descriptions are used almost universally throughout business, industry, government and elsewhere to put boundaries on a job, to describe roles and responsibilities, to give lines of authority and accountability. They are a key management tool. In normal oversight, managers ask, "Are you following your job description? You need to improve this or that part of your job description."

Maine's Judicial Branch is currently attempting to tackle the issue of Guardian ad litem reform. A  committee has proposed a complex new procedure for complaints about Guardians ad litem; another committee is currently addressing the issue of Rules and Regulations for Guardians ad litem. But ... er, folks, excuse me, there is no job description for Guardians ad litem. We have before us a collection of a new complaint procedure and new Rules and Regulations - both in search of a job description. There is no formal description of a Guardians ad litem job to which the Rules and Regulations can be tailored. No roles and functions, no lines of authority, no lines of accountability that are universally a part of a regular job description. There is also the matter of training of Guardians ad litem. In most settings in business, industry and government, the job description is the template, or basis, for job training and education. Training flows from the job pattern and re-enforces the job's roles and functions.

Great work, everyone. Now we just have to find a job that all this stuff will fit! It's doing things backwards.

No job description explains the current Guardian ad litem training design. It presumes a base of knowledge for which there is no evidence and adds a smidgen (16 hours) of social work and lawyer. Lawyers and Mental health or Social Workers have very different bases of knowledge, skill and experience. As one educator told us; education of Guardians ad litem is one root of the current Guardian ad litem problem. The "tap root" is no job description. Without a job description, it leaves the Guardian ad litem in the position of being all things to all people.

The problem is that, while fixing the Rules and Regulations may make the house look clean and polished, these Rules and Regulations have no job description as a grounded  foundation. The foundation is missing. In most settings Rules and Regulations would normally provide direction about how to play out the content of the job description. They elaborate on where the boundaries are located, and rules imply a problem when boundaries are crossed or ignored. They can be specific items reviewed in supervision and in internal organizational corrective action or in external complaints. But in the JB system, there is no supervision of Guardians ad litem, which leaves Rules and Regulations as a sort of disconnected, pious hope. An amorphous, very ambiguous claim of Guardians ad litem working in "the best interest of the child" – something that every parent is also doing – is not a substitute for an actual job description. There is no formal statement that defines who or what a Guardian ad litem is or does, their lines of accountability, their roles and functions.

A reliance on "works in the best interest of the child" as a job description accords the Guardian ad litem a magic mantle of omnipotence and omniscience that no other job in America holds, a sort of high priest/priestess accountable only to God, and the appointing court. Maine is faced with a huge problem with the Guardian ad litem system that starts with these questions: what are Guardians ad litem, what do they do, how are they trained, who has oversight of them, how is this exercised? A final very important question: are children and families safe as a result of their actions? And (this afterthought) why is everyone paying megabucks for this service?

Simply reviewing and rewriting Rules and Regulations for Guardians ad litem with no job description, does begin to address the core of the problem – just what is a Guardian ad litem?

Please let us know at what you think is wrong with the Guardian ad litem system.

Sunday, October 7, 2012

Will this really be good for the Consumer?

Making an official complaint about the Guardian ad litem who has worked with you and your family is a daunting process. It forces you to deal with the Judicial Branch of our state government, which is an unfamiliar organization and an unfamiliar activity for most people.  You have to guess what they will agree is a valid complaint. At the moment, unlike the state of NH, our Judicial Branch gives no instruction about how to. The current complaint process simply says, if you believe that a Guardian ad litem has not acted in the “best interests” of your child, you may make a complaint to the Chief Judge of the District Courts. It has been a most frustrating process for most grassroots consumers. The answer from this process seems to be inevitable: dismissal - without reasons given or without a chance to participate in the investigation or rebut the Guardian ad litem’s defense.

But ... in response to public pressure, the Judicial Branch has just finished drafting  a “new" complaint process concerning Guardians ad litem. In our view, it is NOT an improvement over the old procedure.  Unless... you are planning to go to law school for instructions in how to use this new complaint procedure by yourself. It was designed in 3, 2 hour meetings by a committee of 20 persons, all but one are called,“stake holders”, read: members of the divorce industry; District court judges, family law lawyers, and Guardians ad litem. Given their special interests, they did a terrific job of “bullet proofing” Guardians ad litem from public complaints.  

The Judicial Branch has settled on a process that is not consumer friendly, but it is very Guardian ad litem friendly. Its fancy legalistics make the current process look like a primitive bow and arrow approach.  It has been endorsed by 19 of the 20 Judicial Branch Committee members (one public member dissented in a “minority” report). It now goes to the Judiciary Committee of the Legislature for approval. We sincerely hope that it isn’t approved.

The basic structure of what is being proposed adds several layers of complexity and will take considerable time to complete. It will be administered by The Overseers of the Bar, which is under the Judicial Branch.  As we understand it, the steps one would have to go through would roughly follow:

  1. File your complaint in writing (no instructions yet), and a staff lawyer on the Overseers of the Bar will review the complaint to decide whether or not it has merit, and you will be told why. If it is felt to be without merit, then the complaint would die here. If it is felt to have merit, then it goes to a panel, a committee, the majority of whom are Guardians ad litem.  Consumers are also on the panel buy in a minority position, and we don’t know how consumer is defined: friends of Guardians ad litem or consumers who will advocate for the public?
  2. The first Panel - would review the complaint and conduct an investigation of the complaint. This process could take anywhere from one month to five or six. If the first Panel determines there is no merit to the complaint, it is rejected and the reason for rejection is sent to both the Guardian ad litem and complainer. If on the other hand the complaint is accepted, then it goes to the second Panel.
  3. The second Panel - would review the complaint independently and conduct an investigation of the complaint. This process could take anywhere from one to (unknown) months. If the second Committee determines there is no merit to the complaint, it is rejected (dismissed). If on the other hand the complaint is accepted then it goes to what would amount to as a mini trial.
  4. The Mini Trial - Both sides would come together to plead their case. You as the person who filed the complaint would have to prove that the Guardian ad litem had abused his/ her position/ role. The Guardian ad litem would have to prove nothing. The burden of proof is on the one complaining. If you were not able to prove your case the trial would end end the complaint would be dismissed.

In all fairness, we may have some of this legalistic tangle wrong. Our excuse is that we haven’t been to law school yet, but we’re considering it! Our own difficulty in understanding this process, as informed consumers makes the point that it is indeed confusing. As a consumer - would you feel comfortable when faced with such a daunting labyrinthine task as we understand it?

The Judicial Branch, in proposing this complex, lengthy  process, is saying to the public that they want nothing to do with oversight. That the responsibility falls squarely on the shoulders of the consumer to determine quality of their officers of the court. Can you prove we have a defective officer of the Court to two Panels of other Officers of the Court?  It is a tough assignment!  Can anybody do it?

As the consumer filing this complaint you quite possible will want to hire a lawyer. That will cost you the time and expense. An additional detail:  the Judicial Branch is asking to TAX every divorcing couple $100 to cover the cost of this extremely user-unfriendly process. Imagine the next time you go to a store and purchase something and being told that you are going to be charged extra - to cover the cost of any potential complaint you may have. The consumer who has little or no experience with this type of system that is being proposed will probably back off of the complaint because of the daunting process before him/ her. Is it any wonder that there have been only 2 complaints a year? This is a good way to make sure there are no complaints.

We urge consumers to ask their legislators to fight this Judicial Branch proposal. We urge consumers not to use it if it is approved. If you have had issues with a Guardian ad litem please contact us at

Tuesday, October 2, 2012

The Maine Guardian ad Litem Institute and how it advocates for GAL bill collection

If you visit the Maine Guardian ad litem Institute web site and read their Mission Statement you will read about the noble cause that they have taken up for the child who finds him/ her self in the middle of a dispute between parents. The inference is about the compassion that they, as the Guardian ad litem trade organization, have for the child and the support that they give each other. It is in the Mission Statement that we see what Toby Hollander's Institute is all about. It is about the "compensation for those individuals serving as Guardian ad litem and providing mutual support and assistance on issues relating to the work of Guardians ad litem."

Currently, there is a case that was slated to be heard in the highest court, in which  we see the kind of support that the Guardian ad litem Institute gives to the rank and file. This case is about how the Institute advocates for the use of coercion by the courts to force a parent to pay for a Guardian ad litem services. That the Institute - in support of a particular Guardian ad litem - is  adding its voice in asking the court to have a parent thrown in jail, for non-payment of a GAL's bill. This seems to be one unappealing  interpretation of the Institute's Mission statement.  It is about Guardian ad litem compensation. In the end, it is not about what this court officer can do for the child. It is about what the court can do for this court officer - even if it means a parent is behind bars. One has to ask, how this kind of action is going to improve the welfare of a child? It makes one wonder about the bottom line; whose interest Maine's Guardians ad litem are really looking out for - theirs or the child?  And where are the courts when the public needs them?

It is planned actions like these that give the Maine Guardian ad litem a black eye. When they use the courts that they work in as "officers of the court" to be their "power bill collector" it may be legal, but it looks unfeeling. It looks like they are using their professional role connections for personal benefit. We feel that the Maine Guardian ad litem Institute has some serious public relations and identity problems. Do they want to be "part of the solution, or part of the problem?" Liens,  garnishing and jail for contempt don't cut it!

It you are having issues with a Guardian ad litem institute we encourage you to write to us. There are currently over 40 complaints about Guardians ad litem that we are aware of in the state of Maine.  The list continues to  grow. Is your Guardian ad litem part of this list? Please contact us at