Some questions to ask your Guardian ad litem

Our court system has us believe that the role of Guardian ad litem is at least in theory a person who is the eyes and ears of the court offering a neutral and unbiased view of the divorcing family. In practice the person who operates in this role is anything but. The Guardian ad litem’s personal values and agenda clouds the process and as a result this can be a source of conflict with you.

Ask yourself this:

How well do you know this person?

What happens if your values differ from that of this court appointed official?

Our Family Court system markets the belief that in the roll of Guardian ad litem we have a person who we are to believe is an expert in determining – where your child should live, the impact of divorce or domestic violence, visitation, custody, law, psychology and social work to name a few areas. This expertise comes from just a few hours of training with little or no focus. There is no test to determine whether or not this Guardian ad litem understands the material. There is no mentoring program after the Guardian ad litem completes training. To make matters worse - there is no oversight or management of this person in this role. Doctors, lawyers, judges, electricians, plumbers, nurses, oil burner technicians, chiropractors, social workers and dental hygienists have more training and oversight. In addition to the training and oversight we can ask people in these professions questions without the fear of being reprimanded for doing so.

You – as a consumer – need to inform yourself about the person who is being thrust into your life and making decisions which you have no control over. They should be asked before any Guardian ad litem has become a part of your life - chances are the Guardian ad litem is already wreaking havoc in your divorce/ custody. It is not too late.

These questions are being presented in no particular order or grouping. In most cases the answers will have meaning for you and should be used as a tool to help in understanding the Guardian ad litem. In asking any of these questions if the Guardian ad litem refuses to answer or gives a non-answer answer – that is a behavioral message and a clue as to the makeup of the person. The questions and answers should be entered in as evidence or asked in court of the Guardian ad litem. It becomes part of the record.

After going through this list if you can think of questions that may be appropriate to ask we would encourage you to share. A link will be provided to voice those questions. 

Presented here are some basic questions (depending on the answer there may be follow up questions): 

1     Do you have experience as a law enforcement officer in conducting investigations?

2.       What is your actual field of professional expertise?

3.       What makes you an expert in determining what is good for other people’s children?

4.       What makes you an expert in determining how other people should conduct their lives?

5.       What is your child hood family background?

6.       What is your own family history as an adult?

7.       What is your own marital history as an adult?

8.       What is your own relationship history as an adult?

9.       Why do you want to be appointed to this case?

10.   What do you see your role in this case to be?

11.   How do you separate your underlying professional behaviors from your role as Guardian ad litem functions?

12.   As a Guardian ad litem going through training were you ever tested on what you learned?

       a.       YES – What was the score you received?

       b.      NO – How do we know that you understand the material taught/ discussed?

13.   As a Guardian ad litem you are tasked as being neutral and unbiased in conducting your investigation and in making recommendations.

       a.       How do you maintain neutrality during your investigation?

       b.      How do you keep your personal bias and agenda out of the cases?

       c.       Does the judge provide supervision and oversight when you are appointed to a case?

14.   As a child did you ever experience issues involving the absence of one or both parents?

        a.       YES – What was that experience like for you?

        b.      NO – How can you understand what the issues are?

15.   Do you have experience with research in dealing with child custody?

       a.       YES - What specific research can you sight?

       b.      NO – If not then please explain how you are able to conduct an investigation?

16.   Please describe what was/ is the relationship you had/ have with your Mother?

17.   Please describe what was/ is the relationship you had/ have with your Father?

18.   Are there any ongoing issues with either?

19.   Did you grow up in a divorced home?

20.   Do you have siblings?

21.   Do you have Grandparents?

22.   As a child did you have contact with your extended family?

23.   Do you come from a religious home?

       a.       YES – What is your religion currently?

24.   Did/ do you come from a particular ethnic background?

25.   We grow up with a belief system. It is a part of what defines us as a person.

       a.       Has your belief system ever interfered with an investigation?

       b.      Did/ will your belief system interfere with this case?

       c.       NO – How do we know?

26.   Do you apply your own values in making recommendations to the court?

       a.       YES – Can you describe what some of your personal values (political, social as example).

              i.   If my values are different than yours how will that affect your perception of me as a             parent?

       b.      YES – As a neutral observer – why are your values better than either parent?

       c.       NO – How can we be sure?

       d.      NO – As a neutral observer – are you saying that your investigation is neutral with regards to the values you have?

              i.   If so then what test do you use to verify this?

              ii.  How can we be sure your values will not influence how you view this divorce/ custody?

27.   In making your recommendations to this court please explain how you arrived at the following:

       a.       The visitation schedule?

       b.      Custody?

28.   Have you ever been married?

       a.       YES – How many times?

       b.      NO – How are you able to understand the dynamics of married life?

29.   Have you ever been divorced?

       a.       YES – How many times?

       b.      YES – Did you ever go through litigation?

              i.   YES – Did you have issues with child support?

              ii.  YES – Did you have issues with the custody agreement(s)?

       c.       NO – What experience do you draw upon in order to understand what a divorcing family goes through?

30.   Do you ever refer cases you are involved in to Child Protective services?

       a.       YES – What are your criteria for such a referral?

       b.      YES – Is the claim of child abuse always a criminal claim?

       c.       YES – Should criminal allegations be removed from Family Court to an investigation by the Attorney General’s Office?

31.   Which Judges do you frequently work with?

32.   Which lawyers do you work with on cases?

33.   How many of your cases have been appealed to a higher court?

34.   Have you ever been sanctioned:

       a.       By a Judge?

       b.      By a Higher Court?

       c.       The result of a complaint?

35.   How many cases have you been involved with as a Guardian ad litem?

36.  How do your clients respond to the work you do as a Guardian ad litem?

While these questions should be asked before the Guardian ad litem has been assigned by the judge - quite often it will not be until after you recognize there is a problem with the way this person operates. It is never to late to start asking. Make the questions and answers for the record. If you have any questions which you think may be appropriate we ask that you follow this [LINK] to submit. We will maintain a running list of questions.

MeGAL is working for reform in our Family Court system. This includes the role of Guardian ad litem, Parent Coordinator, Special Master and court evaluators. If you have issues we ask that you contact us at MeGALalert@gmail.com or find us on Facebook.

Complaining About Judicial Conduct - The Oversight of Judges

We welcome a chance to respond to Divorce Corp's invitation to speak out on the topic, "oversight of judges" or the efficacy of corrective action for allegations of judicial misbehavior. The brief answer to the issue posed by Divorce Corp is, “there is no functional oversight of judges." But it is more complicated than that. Our opinion comes from the perspective of our varied experience in family court reform in Maine. And ... we write with some understanding of (a) Judicial Branch mechanisms for judicial oversight, and (b) the Maine state legislature's take on its "oversight of the judiciary" (which includes judges) as a part of its constitutional powers. Problems with the complaint procedure for judges are a small part part of much larger, more serious systemic problems with the entire family court system. We feel that a dysfunctional complaint system for judges cannot be looked at in isolation, while the rest of the system seems irreparably broken and in a state of near collapse.

There is an historic lag between the Judiciary's self-concept of the nature of judges and that of the present day, informed public. In a pre-tech world, when the personal  attitudes and behaviors of judges were less visible to the public, a large part of a judges' power/mystique rested on his/her distance (invisibility) from public view. It was easier to sell the public an ideal image of core judicial attributes: impartiality, fairness, adroit use of discretion, adherence to the law, etc. However, in a Facebook/twitter/e-mail world, a poorly functioning judge may get continual exposure - warts and all, and this exposure puts a serious dent in the “ideal image" of what a judge should be. Judges can't escape the social media world in which everyone else lives. A bad judicial judgment can go “viral”. Traditional judicial 'gravitas' has been dealt a blow from which it will never recover.

How then to deal with the new reality of "warts and all" judicial images? From what we can see in family courts, the legal establishment is in self-serving denial of the problem. Judicial misconduct or the need for any form of corrective action get handled by a mix of firm denial, legalistic complaint - driven approaches, placement of “buddies” on the complaint committee and by attacks and slurs on those who would complain. It is the problem of self-regulation of any industry. It gets magnified in a very closed, very opaque system in which a great deal of money is involved.

In the midst of this new reality, the Maine Judicial Branch takes little visible administrative or management action in correcting judges. More troubling, if one looks at a recent posting on their web site, they seem to be  overtly calling for greater bench/bar coziness. A recent proposal to  replace, or modify, the Maine Code of Judicial Conduct seems aimed at an even more judge-friendly approach. One telling phrase from the "proposal" jumps out:  "... valuing close and regular contacts between the bench and the bar and in fostering involvement of judges with lawyers and non-lawyers in the larger community where judges live and work." To public readers  this phrase sounds like a call to enhance further the "old boy network".  Especially, if one considers the already “close regular contacts” that go on between the bar and the  bench right up to and including the Supreme Court. The bar has huge, powerful, not always wholesome influence on judges. By using a mix of bullying and "make nice" techniques they manage gain judicial compliance and "correct their actions"- if unfavorable to the BAR. One wonders about the impact of all of this coziness on judicial impartiality and the issue of “undue influence”? The BAR plays a pivotal role in supporting or opposing judges up for re-appointment. One worries that the criteria for these  judicial appointment or re-appointment matters are how lawyer friendly is this judge? This is all done beneath the public radar:

(A) Formal Judicial  oversight mechanisms:
    i) Judicial Responsibility and Disability Committee: Here is the link to this committee:
               
A big problem here is that this committee ignores the glaring fact that 74% of family court cases are ‘Pro se’. A similar 74% would probably be complainants. This web site as “how to” is not “user friendly” for a ‘Pro se’ complainant. It is multi-layered process, each layer must be put to rest before taking the next step. It is a very legalistic process. It requires legal knowledge. And the outcome? From what we can determine from many informants, ZIP!

Using a lawyer may make the legalistics a bit easier to navigate, but it is expensive and a lawyer must always be careful not to be too aggressive in promoting a claim or they may incur charges of disrespecting a judge and face a ‘sua sponte’ complaint from the Overseers of the BAR. It is a fraught situation to say the least, and having a lawyer doesn’t seem to make any difference in obtaining “corrective action”.

    ii) Use of a Supreme Court appeal mechanism to address judicial misbehavior.  In theory this is a possibility. The Supreme Court will hear cases involving claims of abuse of judicial discretion, but the attorney making the claim must walk a careful line. Here is a reproachful quote that may shed light: “[the lawyer] displays what appears to be a general disrespect for the court and for opposing attorney...”. This quote comes from a recent Court’s decision. This remark from the Court resulted in a ‘sua sponte’ complaint from the Overseers of the Bar, a subsidiary of the Court, about the lawyer, who had written a lengthy, unusually detailed, carefully documented brief. It made the case of serious judicial impropriety too perfectly!

(B) More Systemic approaches: Legislative actions of the Judiciary Committee of the Maine legislature.

The passage of legislative bills into law is one systemic strategy that, it is hoped, will correct some family court actions.

We have had some modest success in getting legislation passed in 2013 aimed at Guardian ad litem reform. It was the first rewrite of the GAL rules in many years. But ... Its subsequent implementation in any family court is a question of judicial discretion, judicial enforcement, judges following the law. Most don’t know the law; most ignore it claiming “judicial discretion.

     i) Passing laws or bills aimed at correcting excessive judicial  discretion. This is much needed but a daunting legislative challenge. The challenge comes in the form of the Legislature not being sure of the boundaries of its “oversight of the judiciary” constitutional mandate. But we are working on it.

     ii) Public testimony in opposition to judicial appointment and reappointments when these issues come before the Judiciary Committee of the legislature.

We have only just tried this approach this year with mixed results. On the one hand, testimony from the public about the egregious actions of a judge up for re-appointment raised serious doubts about the judge’s fitness. For the first time ever the re-appointment was not a slam dunk. It got postponed until the following week. In the interim, the divorce industry rallied the troops and conducted an email blitzkrieg on committee members endorsing the judge as a paragon. They also conducted a slur campaign on those who testified. It was an amazing performance from which we learned much. It is all part of the record, and we shall return to try this approach with modifications based on “lessons learned”.

In summary, family court problems are a complex network of interacting systemic problems. Attempts to solve one issue such as judicial misconduct have to be looked at in terms of the total system.

MeGAL is working to reform the Family Court and Guardian ad litem system. If you have had an issue in this area we would ask that you contact us at MeGALalert@gmail.com of find us on Facebook.

Santa - They Are All From Kids Who Want BOTH Parents

While the cartoon is meant to make light of the Family Court debacle – there is a huge amount of truth in the message.

In many cases throughout the state and country we have heard stories of parents being ripped away from their children by our courts. These are parents who are solid citizens, who have no background of drug or alcohol abuse. No history of mental illness. They do have a love for their children and fight for them when things appear wrong.

For this they are often punished. Take for instance the case of Dalton v Dalton which went before the Supreme Court of Maine. With this case the lawyer actually represented the client – and fought for Sarah Dalton. The opening brief slammed the Guardian ad litem and the Family Court Judge on the case (it should be noted that the ‘judge’ in question went on to get a promotion back in April. This promotion is not related to this case). The brief sited case law as to why the court was in error. In the end it came down to aggressive lawyering on the part of Sarah’s lawyer as being bad. The complaint on the GAL and ‘judge’ was wiped clean and the mother who was fighting for her children was punished as was the lawyer.

We heard from a mother who earns at the poverty level – pays the GAL bill and pays child support to her ex (who it should be noted allegedly works for a family business and is paid under the table. He has managed to purchase a brand new truck and lives in a house that cost over $350.000.00. The reportedly earns in the neighborhood of $5000.00 - it is amazing that someone in an income this low would be given the credit needed for the house and truck). She went back to court to try and get some relief from the crushing financial burden she has been encumbered with. The 'judge' (who it should be noted is one of the four worse in the state told this mother that because she earns more than the father she is responsible for payment. To add insult to injury the 'judge' took even more time away from the little she has with her kids. It should be noted that the mother is still struggling to make ends meet.

Then there is the father who has fought for his son against all odds. He is up against one of the worst judges in the state (this judge is different than the one mentioned above but is one of four who are the worst in the state). He has no history of mental illness nor does he use or abuse drugs or alcohol (it should be noted though that his ex does). Yet he has had to go through a battery of mental health and parenting tests – his ex has not - at a huge cost to him. He has been stripped financially and is working two jobs to meet the child support requirements - his ex does not work. He is living as close to poverty as one could without actually being in poverty. To add insult to injury he has had his son all but stripped away from his life – to the point where on the few occasions he has had contact with his child – the child cries because he misses his father.

The list – and the pain – goes on. Every parent should have the opportunity to be a part of their child’s life. Every divorce should start off with the idea that the custody is going to be 50/50 and that one or both parent(s) will lose or gain from there. If one side suggest the other needs testing – then both parents should be tested. There should be an equitable balance between the two halves of the divorcing family. It is not a game to be played out with the children as the prize. The only reason why a child should have limited and tempered time with one parent or another if there is cause for that. This should be based not on some ambiguous and ill-defined standard such as “the best interest of the child” standard. But on a standard which can be measured and tested – we like the term “is the child safe”. Is a child safe in the house of a drug addict with mental health issues? Or with a parent who holds down a job and contributes to the family? Is the child safe in an ever changing environment? Or one where a parent has lived for years?

In 2015 we hope that there will be more even-handed division of a child's time of divorcing families between their parents. A child needs the wisdom of both parents and their families. Not to be limited to one. That will only come about if the current family court changes or goes away.

Merry Christmas and Happy Holidays. Thank you for following us on Facebook and out blogs. Please feel free to contact us at MeGALalert@gmail.com or call us at 207-370-9801 (ME). We hope you can join us in 2015 to bring about legislative change. Thank you.

Have you Suffered at the Whim of Judicial Discretion?

“Judging requires adherence to the constitution or statutory provision at hand.” Justice ElenaKagan, to Senate Judiciary Committee, 2010

The above quote from Associate Justice of the US Supreme Court, Elena Kagan, says it all. Judges need to follow the law, like anyone else. Or... we would add, the law is in danger of becoming meaningless, with confusion and chaos reigning in the court room and “users” of the courts having no “true North” to follow. In its most favorable interpretation, judicial discretion may be considered an aspect of judicial independence, fitting a law to the actual situation at hand, but where there are clear constraints set down, they should be followed, or the court may be abusing its discretion and undermining the rule of law. Some law scholars claim that the absence of a jury in family courts, and therefore, absent a source of  “oversight” of judges  -  may enable an abuse of judicial discretion. “Judicial discretion”, when applied to the Maine Rules for Guardians ad litem, leads to confusion for users of these courts and huge bad feeling.  Do Rules for Guardians ad litem mean anything or not?  Does Judicial Discretion, when randomly ignoring or mis-applying Rules for Guardians ad litem, benefit anyone?  Does it not undermine confidence in the process and lead to suspicions of judicial corruption?

By reports “from the front”, we hear that many judges appear to have only a general knowledge of the Rules for Guardians ad litem.  Many Guardians ad litem, likewise, seem to have limited knowledge of their Rules.  But the users of Guardians ad litem services depend on these Rules for help in understanding the boundaries of permissible Guardians ad litem functioning in their case. It commonly happens that ‘Prose’ (and other) users of a Guardian ad litem's services know the Rules for Guardians ad litem better than the “Officers of the Court”!  But... to what end, if these officers, using “discretion”, throw Rules to the wind and run things on raw power? It is “because we are the mommie!” thinking.

The recent precedent-setting case, Dalton v. Dalton, raises troubling questions about the use of judicial discretion in family courts and how/whether the current Rules for Guardians ad litem are just words on paper? Or - whether - Rules be damned - Guardian ad litem activities may be any old thing - defended by ‘ad lib’ reasons. In effect, this places a Guardian ad litem's actions at the whim or caprice of the judge. To lay persons watching this performance, it suggests that the judge has historical powers - in an extreme form - of an absolute monarch. He may authorize a Guardian ad litem to do whatever he/she wants. Even more ominous in the Dalton case is the danger faced by the attorney who challenges this extremely broad Judicial Discretion. There is the risks of being in contempt of court. Truly, l’etat c’est moi! With unlimited discretion, a lawyer is reduced to the role of polite courtier or court flunky in this situation. A robust defense of a client is dangerous. A challenge of this “abused discretion” may result in serious sanctions (reprimand or loss of license).

A lawless Guardian who orders a mother out of her own home is acting with NO visible “Rule for Guardians ad litem” to back her. A Guardian who orders professionally unrecognized, “junk treatment”, scream therapy for a child has NO Rule to back her. These actions and others strike members of the public as being outrageous and way outside of the Rules for Guardians ad litem. Some would say that it is frank bullying, a gross abuse of power- and feel it is outside of the rule of law! But these actions (and more) were supported by the judge in the Dalton case. And... they - the Guardian ad litem and the Judge - were supported by the Maine Supreme Court in an appeal. The lawyer making the appeal was sternly condemned in the appeal decision. And faces possible sanctions from the Ba

Is the Court saying: A Guardian ad litem can do anything? Guardians ad litem are not required to follow their Rules? The Rules are just suggestions with absolutely no consequences whether they are followed or not? Is the court saying: the judge is an absolute monarch in his/her courtroom? Judicial discretion is the absolute, actual Rule?

It also appears that they are saying, “Woe betide any lawyer who dares to challenge this brand of judicial discretion in a family court?  Judicial Discretion as a ‘de facto’, idiosyncratic super Rules for Guardians ad litem” would appear to take precedence over any published Rules for Guardians ad litem on the Judicial Branch web site. One has to ask, what then are the Rules for? Are they a sort of bureaucratic “window dressing” for the benefit of the Legislature and the Executive Branches?

One also has to ask, is this sort of apparently, ‘ad lib’ rule-making by a judge in the best interest of families who use our courts, lawyers who work in them and for the well-being of Maine citizens, who want to trust and believe in  our courts!

We need a law that tells judges that if there are Rules for Guardians ad litem they cannot be dispensed with on the basis of “discretion”. They must be followed! Judges need to give a leadership example of respect for the written constraints set down.

Please contact us at MeGALalert@gmail.com if you have experienced Judicial Discretion. Or like us/ find us on Facebook for up to date information.

New Rules for Guardians ad litem versus or ... Judicial Discretion.

We are sure that the 78 page document spelling out a set of new Rules for Maine Guardians ad litem represents many hours of work on the part of some Judicial Branch Committee. However, to this reader, they are a very perplexing document. Exactly what are they supposed to be? Are they a job description? Are they some sort of regulations aimed at governing and bounding the work related actions of Guardians ad litem in divorce and custody (and protective) cases? Are they a set of voluntary guidelines to be followed if the GAL wishes? Are they well intentioned (but empty) ideals? What are they? It is far from clear.

Any set of Rules on paper may look fine, but their value and meaning  come from whether they are enforced or not- and how. For these new Rules there  appears to be no enforcement. There appears to be no consequences of any kind for not following them. There is no designated entity responsible for oversight to see if the Rules are being followed. There is nothing we can see, except for the reporting of complaints by the ‘pro se’ public. This complaint process itself is a confusing procedure guaranteed to fail. To this reader the message in the new rules seems to be: "it would be nice if Guardians ad litem learned these Rules and tried to follow them. But if they don't, not to worry. There are no consequences.

The complaint procedure speaks loud and clear to these issues. For family courts in which 74% of litigants are 'pro se', the complaint protocol spelled out in the new Rules is frankly unusable. It's complexity, its lack of instruction about "how to", its legalistic posture, its insistence on "innocent until proven guilty" even in cases needing only minor corrective action, its extreme concern about due process, makes it bullet proof against any public complaint. It also has no use as a management tool, a heads up from a member of the public that is simply aiming to improve GAL quality in cases of less serious malfunctioning. We guess that the court feels that GALs don’t need management? GALs all over Maine can heave a sigh of relief. Courts can breath easier. The complaint procedure won't be used, or, if it is used by an unaware 'pro se' litigant they won’t succeed in penetrating its airtight defenses.

For the time being, Guardians ad litem will be able to escape any consequences of  ‘pro se’ public complaints, but please don’t think that this will make the  GAL problems go away. They will just fester, suppurate, expand and grow larger.  Sooner or later the GAL malfunctioning problems will be uncontainable and a public scandal will burst through!

The "Catch 22" about the proposed new Rules (or the current ones) is that their courtroom enforcement appears to be totally a matter of judicial discretion. They can be discarded, amended or altered if a judge- quite independently of any rules - decides to order GAL actions not covered by the Rules for Maine GALs, or ... to ignore flagrant violations.  a piece of this problem- in our experience- is that many judges and many GALs lack specific, detailed knowledge of the GAL Rules and have only a "general idea" about Rules for GALs.  "Judicial discretion" seems to allow for creative use of the Rules in any which way.

To many of us, the recent Maine Supreme Court appeal, the Dalton vs Dalton case, appears to tell litigants that even a well-documented carefully reasoned exposition of what looks like a gross abuse of current GAL Rules by the GAL and documentation of a similar situation by the  judge  risks a "contempt of court" complaint.  It also risks "hand signals'  to the Overseers of the Bar to open a 'sua sponte' complaint against the lawyer who dared to document the problems.  The implications of this series of actions seem clear to us: any lawyer who robustly defends a client faced with dysfunctional judicial or GAL behavior is in extreme professional danger. DON'T DO IT!

The answer to correcting the dysfunctions in GALs and judges seems to be to bury the problem, until the weight of scandal and and corruption from within cannot be suppressed. A massive public cry of outrage and a demand  for action ensue.  The fairly recent scandals in the Catholic Church come to mind as an example. Suppression only works for a shorter and shorter period in the age of the Internet.

In our interest for reform, we are tempted to say to the Judicial Branch, "Do nothing.  Let your unenforced Rules and your unusable complaint procedures stand exactly as they are.  In the long run, they have within their carefully crafted attempts to control and suppress the truth (at a time when the Internet dictates that “you can run, but can’t hide”), the inevitable roots of a huge scandal, forced change and reform.  We're just not there yet!

There should be an easier way for all.

We shall overcome.  ... someday!

Please contact us at MeGALalert@gmail.com for more information.