The Role of Judicial "Out Sourcing" in Divorce Custody Cases

An out of state friend has suggested the concept of judicial out sourcing as a way of describing the use of Guardians ad litem and associated divorce helpers, coaches and therapists in Maine Family Courts (and elsewhere). The basic idea is that today, judges almost routinely call upon ancillary court workers, like Guardians ad litem, and delegate, or subcontract to them, important aspects of their judicial function in family law divorce/custody cases. The ancillary worker “borrows” judicial authority, power and legal immunity and conducts an investigation into disputed child custody claims. Previously what used to be decided by an open, adversarial trial, in a courtroom, following the precedents of age old common law, now gets mediated, negotiated, manipulated or forced outside of court into unsatisfactory resolution by workers who frequently lack a legal background, lack public accountability and who lack recognizable skills in mediation or negotiation. Common law gets thrown to the wind in these procedural nightmares in which there may be multiple other helping “sub-subcontractors”, all acting as ‘de facto’, mini judges.

We would maintain that judicial out sourcing in divorce custody cases is corrupting decision-making in family court cases involving custody. It is the cause of much confusion and bad feeling for all parties. This confusion is the direct result of the delegation of judicial functions to various, well-intentioned judicial “helpers” who are unregulated, unsupervised, unaccountable, poorly trained and who, as a result, frequently operate in idiosyncratic, capricious, unprofessional ways to the detriment of families and children.

One of the criticisms of Guardians ad litem in the 2006 Maine OPEGA report (Office of Program Evaluation and Governmental Accountability) was the lack of clear role definition for Guardians ad litem. There is no job description for GALs. There are rules and standards for Guardians ad litem, but there is no oversight and no enforcement from any management structure within the Judicial Branch. The result is that GALs essentially are free to do their “own thing”, interpret rules and standards as they see fit, see them as suggestions or loose guidelines, or ignore them completely, with no consequences. The bad feeling that the public experiences from this “lawlessness” is incalculable. Judges frequently feel that they have oversight from courtroom observation alone, or from ‘ex parte’ communications. But these judicial claims of oversight lack the knowledge about what goes on out of court between the GAL and the parties and they become unavoidably biased by confidential 'ex parte' communications between judge and GAL. These out of courtroom conversations between judges and GALs also destroy the common law concept of open decisions openly arrived at - to say nothing of the inherent “due process” violations in secret 'ex parte' communications.

Then there are the quasi-amateur mediation and negotiation functions undertaken by GALs that further corrupt legal proceedings. In these nontraditional functions, GALs often try to operate with a postmodern, conceptual framework of “moral equivalency”. In all cases, each party is equally “bad”. It is a parody of impartiality. Whatever “A” did is balanced in this perverted equation by equally bad things done by “B”. If “A” beat their child to a pulp; it was caused by living with “B”, who was “caustic and controlling” or so emotionally difficult to be with that any “normal” parent would do the same to his/her child out of frustration. Parent A drinks: Parent B drove him/her to drink. Parent A does “bad” things; Parent B pushed his/her buttons. He/she couldn’t help themself! ”Victims” in these situations are rescued by the GAL’s use of “pop” sociology, “pop” psychology. This ‘faux science’ has been called “junk science” by a California group seeking tighter oversight on the all too common use of non-expert GALs as “expert witnesses” in court. Then there is use of force by GALs to gain consent to a biased custody agreement. Raw force is frequently hidden by threats that non agreement will lead to “recommendations” to reduce the non-compliant parent’s visitation with his/her child, to “recommendations” that he/she must do anger therapy (for normal anger?), to needs for expensive co-parenting therapy- all of these are highly disputable, unproved forms of forced “help”. They are supposedly “remedies” but they are without any definition of the problem needing remediation. They add enormous confusion and huge cost to the proceedings for the parties involved. And forced “help” of whatever kind is outside of common law. It is basically punishment without a trial. Yet the illegality of “force” is ignored, and these barbarisms find refuge in the armamentaria of Maine family court judges. We can point to many cases in which this has taken place.

The Judiciary needs to clean house when it comes to ancillary “divorce midwives”, who complicate the delivery of a custody judgment in a contended divorce. GALs, anger therapists, negotiators, mediators, co-parenting counselors and the rapidly growing cast of expensive divorce help end by piling confusion on confusion- and dollar on dollar. Are these “helpers” really necessary? Do they help? They totally pervert the judicial process. And they lack any scientific basis or credibility outside of the courts which use them. We need to ask, why are they better than an adversarial trial in court? Can anyone show us reputable scientific studies that would endorse the effectiveness of these “therapies” which are popular and boosted by many Maine courtrooms? We can safely say that there are none. These are legal “therapies” promoted by judges and their subcontractors with no other basis than that judges like them.

These harmful practices need to end. They cannot be repaired. If you have been involved with a Guardian ad litem where things just don't make sense – please contact us at MeGALalert@gmail.com or like us on Facebook to stay up to date on the issues.