Guardian ad litems and Informed Consent

One of the issues that is very frequently expressed when you talk with those who have been exposed to a Guardian ad litem in a child custody situation is: “I didn’t know what to expect.” Or … “At first I thought it was me, that I was missing something or didn’t understand.” Another common statement is: “I thought it was my fault.” Then …”It gradually dawned on me that there was something wrong on the GAL’s end.” All of these comments speak to confusion, surprise, lack of understanding and, finally, recognition and anger on the part of clients that can be common ingredients in a troubled Guardian ad litem experience.

Yes, there is information on a state web site, which spells out what a Guardian ad litem is supposed to do. It is an empty standard without any enforcement, and it is frequently discovered by the client after the process has started, after a commitment has been made, and open-ended  contracts signed.  And … you find yourself trapped!. Lawyers frequently fail to explain what the boundaries of a GAL are and what they do.  GAL’s themselves mostly just jump in and start working and may just give cursory instruction as to what they do. The client is left with huge confusion, imagining that this lack of orientation is simply the standard- if primitive- way of doing business with the judicial system. The sad thing is they are absolutely right.

To avoid the client’s sense of confusion and entrapment, to avoid the shock of an unpleasant surprise, the Judicial Branch should mandate a policy of informed consent as a foundation for a client’s relationship with a GAL.

Informed consent must meet certain minimal standards. “It is based on a clear appreciation and understanding of the facts, implications and future consequences of an action.” as defined in Wikipedia.  In the client/GAL relationship, the client needs a practical road map of how the GAL’s actions will proceed.  Who is the GAL representing: the clients, the child, a lawyer, or the judge?  What are the boundaries of GAL confidentiality in general, and does it apply to so-called group supervision with other GAL’s?  Are there any confidentiality boundaries that can’t be broken?    Where do a GAL’s  ‘ex parte’ communications with the judge, both those announced and secret ones fit?  How about GAL fees?  How often will bills be rendered?  Will chargeable GAL activities be identified or itemized clearly or not?   Is there a cap on a GAL’s fees?  How can one appeal a bill? There also needs to be the revelation by a GAL that they operate without any oversight.

These are only a small part of the topical issues that any GAL’s client might need to understand in order to give informed consent for a GAL to proceed.  Most important to clients as the case proceeds is: How do I get rid of this GAL?  The pragmatic answer is: “You probably can’t”, coupled with how much money do you have to initiate a motion to remove a GAL?  What will it cost to do an appeal?  How many cases make it to appeal and how successful are appeals?

For a court to appoint a GAL without any informed consent, in our opinion, can be seen as an act of unrestrained judicial force.  It thrusts an unregulated GAL, with no oversight, into the center of families, already experiencing the interpersonal pain of a divorce.  At present, there is no quality assurance for this GAL.  It is a totalitarian act and needs the most thoughtful, careful (and transparent) justification for such a use of power in each case, if there is a desire to avoid abuse – or the appearance of abuse.