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


  1. This plan is safely tucked away in the JB's Overseers of the Bar. It operates like a mini legal complaint about a lawyer, very legalistic, very complex and ... very slow. It also taxes all divorcing couples at the start of their divorce to cover the costs of GAL complaints- just in case...

    And ... the best "fun" is that your complaint about your GAL will be judged by a panel of GALs. Bias? Oh, no, they promise to be fair. Oh, and there are 2 panels, like this. If your case gets through panel #1, well, there is panel #2- also GALs to "clean up" if the 1st panel made a "mistake"!

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  3. The Judicial Branch committee that is planned this "new" complaint process was 19/20 from the "divorce industry". They felt everything was fine. If they want change "Make 'em pay", was the position of one family court lawyer on the committee. And the committee agreed.

    The "new" Judicial Branch complaint plan will charge every divorcing Maine couple $100.00 if they have a GAL in their case, whether they make a complaint or not. It's "the GAL tax".

    We might say, "No taxation without representation!"

  4. This is a Tax on the divorcing family. One has to wonder if the Judiciary has overstep its bounds.

  5. To put "consumers" (children and families) in a meaningful GAL reform picture, there need to be several ideas pursued:

    1.) Consultation by a reputable national consulting firm that has been fully briefed on the full nature of the problem from all perspectives. Among other things the firm needs to talk with actual consumers who know "where the bodies are buried" in the current JB GAL program.

    2.) A government audit of consumer issues in connection with the current GAL program. This audit should be commissioned by either the Legislature or the Administration- not the JB. Such an audit should document some of the severe hardship imposed on children and families by poorly trained GALs with 16 hours of training and no internship.

    3.) A State of Maine Investigative Commission that would assess the current functioning of the Judicial Branch's family courts and children's programs and make recommendations to bring the JB into the 21st century.

    4.) At the moment, on the topic of GALs, the Judicial Branch is so mired in the politics of its political base, the vast "divorce industry" and the affiliate programs that have spun off of this "industry" that it can't regulate itself. Self-regulation is always problematic.

    5.) Is the malfunctioning of the GAL program a"case of one", or is it a symptom of a more general problem of inadequate management in the JB?

  6. Trying to fix something that is already broken to work as a better model for the safety/best interests of children should never include putting up yet more bureaucracy in the system. The family court tries to wear you out until you quit. You want justice change the system for divorce with children, get rid of the Trailing Dockets that take up to three years to hear a case, get rid of Guardian Ad Litems unless there are real issues, make that Guardian Ad Litem who makes an average of $100 an hour to be professionally responsible for his/her actions like any other profesionnal in the free world. That means get rid of the Limited/Quasi Immunity and make them prove what they write in a report. Ensure that none of the written actions get moved upon until a judge hears the case and that Guardian Ad Litem who is an expert witness can be questioned about what he/she wrote. Recommendations than get ruled on by judge, not rubber stamped now because whatever the GAL writes is gospel, they abuse the power they have because they are untouchable as they can write whatever they feel like because they have immunity. Limited is not even correct. My GAL violated several rules of the GAL Rules and Laws and when I filed the complaint it was dismissed without any reason or due process whatsoever. When I asked why, I was told by the Judge that, "We consider your case closed".

    Since then, Judge LaVerdiere has opted out of the GAL Complaint Business. Chief Judge Saufley who admitted the process was broken at the Judicial Branch has done nothing except form a committee with 20 people that were handpicked by her and her staff to further complicate the process. The one public member on the board that offered many consumer friendly suggestions was basically ignored by the other 19 members of the Committee that all had a financial interest to keep things either at the Status Quo or even harder.

    Educated adults need to make educated decisions about the future and that is our children.

    It is time to stop wringing your hands and make things happen. Please contact your State Senator/Representative and tell him or her that is process is wrong and we need transparency here.

  7. The term, "quasi judicial immunity", is hard for most of us to translate, although we do know the meaning of each individual word. Is it intended to say that a GAL with 16 hours of training (and no internship) is like a judge? It sounds like a very bad joke. The bottom line: if a GAL causes harm, there is no liability. Common law traditions of torts goes out the window, because of "quasi judicial"!!

    But in some cases, "like a judge" isn't too far from the truth. In these cases the GAL and the judge are an unholy team that make judgements together that rely on the GAL's opinion about "the best interest of the child". When they make decisions based on 'ex parte' communications, some of which are not revealed to the parties, these secret communications amount to a trial within a trial. One that excludes the parties. Even though the trial may go on, it is legal "make believe" that goes through the motions, but the outcome has been decided in private between the judge and the "quasi judicial" GAL.

    It is what might easily be called a "Star Chamber" arrangement that corrupts the legal process, that corrupts judicial impartiality and that turns a GAL into a paid secret court informer.

    The consumer still has to pay for this sort of charade on many levels. Paying an additional "tax"- just for the fact of having a GAL attached to one's case is the ultimate "consumer unfriendly" outrage.

    We have to ask: does the JB have taxing authority? Does any Judiciary have taxing rights? We thought that taxing authority rested with legislatures? Or does it simply change the label from "tax" to "special court fee". A tax by any other name... still looks like a tax, feels like a tax, and takes money forcibly from citizens.

    Or is the JB establishing a $100.00 charge as a penalty for divorcing?

    Your guess is as good as ours.

  8. The bottom line: does the Judicial Branch respect the people of Maine- even a little? The JB's new complaint proposal- due to be presented to the Judicial Committee of the Legislature on Monday- suggest that they don't.

    Take your complaint about the malfunctioning of your GAL to 2 successive panels of GALs who will investigate their colleague and decide your case. If the first panel doesn't dismiss the case, the second panel is another "complaint filter", and then there is the "mini trial". It gives the term "stacked deck" new meaning. And ... it will take forever. Many months, even years. You may be dead first.

    And the ultimate irony is that the JB still doesn't have true "oversight" of its GALs. It passes the buck to the two GAL panels and the mini trial. And ... the consumer is the whistle blower, who has to prove that GAL malfunctioning needs attention by the JB bosses. What happened to "supervision" ? What happened to GAL management? What happened to running the GAL show and taking some responsibility for it?

    To charge divorcing couples $100.00 at the start of their divorce- just in case they should make a future complaint is, in effect, a"divorce tax" or a penalty for divorcing when there are already other daunting financial losses and expenses facing anyone who divorces. It is the ultimate unfriendly act. It's the rallying watchword from the divorce industry: "Make ' em pay!"

    And they propose to "Make 'em pay!"

    But the proposal is exactly what one would expect when the JB has turned to "the divorce industry" for advice on a new GAL complaint process.

    It is very divorce industry friendly.