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


  1. 'Ex parte' , especially its totally secret form , strikes many people as indefensible from the point of aiming to have a fair, open trial, a level playing field, equal opportunity for all players.

    A GAL whose services are paid by"the parties", shares information obtained from the parties with the judge, unbeknownst to them. If this doesn't sound dishonest, how do you define sneaky and dishonest? More important, how does this secret conference influence the adversarial dispute before the judge going forward? In fact why go forward at all? Any pretense of an open trial becomes make believe once 'ex parte discussions have occurred. Although the costs going forward are not make believe!

    'Ex parte' communication also leads to dishonesty and lack of transparency in GAL billing. It is difficult to itemize: "secret conversation with the judge". So further dishonesty has to come into play. "it would not be in the child's best interest" to itemize the GAL's bill! You bet!

    'Ex parte communication is complained of in family court from Maine to California. It needs to be eliminated or very tightly regulated.

  2. Why do I need to go through a process so complex to say "hey I think this person is not doing their job". This sounds more complex than it needs to be.

    The Judiciary should be ashamed of itself as well as the 19/20 and 11/12 participants who see no problem whith the way things are right now.

  3. The Judicial Branch, or someone, has been asleep at the wheel when it comes to protecting people's confidential information. There are NO protections. A GAL can obtain any information and has NO obligation to protect or hold it in confidence. The Rules and Regs for GALs have so many exceptions that permit violations of client confidentiality as to render them meaningless. A GAL can share client confidential information with anyone, IF he/she believes "it is in the child's best interest"! Whatever that means.

    And this freedom for GALs to plow into privileged, private confidences is inflicted on ordinary, normal citizens going through a divorce- not criminals, security risks or terrorists! It is hard to understand why this laissez faire attitude is in the public interest?

    And the JB says about GALs, "No problem."

  4. Dr. Collins, I admire your courage to openly share your experience with the JB with us all who have had an experience with a GAL and also those who are interested in really changing the system.

    We should all keep on fighting, in our own way, until something decent is presented from the JB to the legislature for approval.

    I am on board!!!

  5. Why a GAL should be allowed to sit in on personal therapy session, or be granted access to privileged psychotherapy notes is hard to understand in a democratic society. Such actions heavy handedly obliterate the effectiveness of personal therapy for the future, shatter trust, invade the space and dignity of the GAL's clients. Only in the most totalitarian societies would such actions be allowed , but even there citizens are horrified.

    This is done in divorces of non criminals, non national security risks, non-terrorists.

  6. We are concerned that current Rules and Regs for GALs violate due process in numerous ways, most prominently in connection with 'ex parte' communications.

    We are also appalled by the force and pressure used to obtain privileged clinical records. Grant permission or go to jail for contempt! Grant permission or face restrictions on visits from your child!

    No one can sign a release of information (or give a true "informed consent") without know ing the uses to which highly privileged information will be put, why it is necessary to release this information and whether it will be used against the one who owns the information. None of these issues are addressed as a rule.

    It is a cruel, crude process that is an affront to the dignity of the parties and that wrecks/smashes their therapy by breaking in! These people who suffer these violations are not criminals.

  7. To my mind that's exactly what I call a lovely article! Do you utilize this website for private purposes only or you still have it as an additional source of income?

  8. The entire system is broken!

    1. That is an understatement. Those that make a living from within the system have influenced what goes on for such a long time that they have become ingrained.

      Is a page that we have that attempts to show how interconnected the divorce industry is with the Judicial Branch. When the Judicial Branch gives the appearance of being more concerned with the concerns and opinions of the "stakeholders" you know there is a problem.