“Supervision is an opportunity to bring someone back to their own mind, to show them how good they can be.” Nancy Kline

GAL oversight and accountability

The issues:

1. Complaints to the presiding Judge
2. GAL communication with involved parties
3. GAL billing
4. ex parte communication
5. ‘in the best interest’ model vs. the safety of the child

Solutions:

1. Panel for GAL complaints
2. GAL recording of fact
3. Elimination of ex parte between Judge and GAL
4. Open transparent communication
5. GAL billing standardization
6. Standardized complaint process for District Court/FM and Supreme Court
7. Posting of complaints
8. Safety of the Child

The Issues:

The issues of GAL oversight and accountability go beyond the issues listed here for consideration. It would be almost impossible to address every issue and offer solutions given the time constraints on this project undertaken by the Judicial Branch.

1. Complaints to the presiding Judge: It was brought up several times during the meeting by GALs that the complaint process should start with the presiding Judge for various reasons. While in theory this is a sound idea as this Judge is closest to the source it is for this reason why this idea fails. The presiding Judge is for all purposes the manager of the GAL that the complaint is focused upon. The complaint is a comment not only on the deficiency of the GAL but also about the Judges management ability. The Judge also has a working relationship with the GAL – the GAL is a colleague. A complaint forces the Judge to lose his/ her neutrality in the ongoing case. In order to maintain neutrality the complaint process must be removed from the hands of the managing Judge.

2. GAL recording of fact: In every case that we are aware of the GAL has been deficient in the way he/ she communicates with one or both parties involved. Because of this lack of communication it leads to mistrust and misunderstanding of what the GAL is doing or attempting to do. Lack of communication with the GAL also prevents for correction of data being collected by the GAL. There should be standardization in the way a GAL communicates with both parties that is transparent.

3. GAL billing: GAL bills should be on a month or bi-monthly basis. With many of the cases we are aware of the GAL uses cryptic terms in his/ her billing statements. In one case the GAL indicated that he/ she does not bill until the final hearing (having done so for many years). These are unacceptable practices and ties in with the way the GAL communicates.

4. ex parte communication: ex parte communication between the GAL and the presiding Judge means that the GAL is able to present his/ her case before the parties involved are able to do so. If the GAL has a leaning towards one party over the other then this gives an unfair advantage to that party. It leaves the losing party having to disprove the GALs recommendations. The other party is left accepting.

5. ‘in the best interest’ model vs. the safety of the child: “Best interest of the Child” as the gold standard for determining the needs of the child(ren). The best interest standard though is ambiguous and is based on the opinion of the GAL. It is open for interpretation and for conflict. In every case we are aware of the use of “the best interest of the child” coupled with recommendations that appear to lack any common sense infuriates those that this term is used upon. In addition because this term is so ambiguous it can lead to abuse by the GAL. The term is more a weapon used against these people rather than a tool to help.

Solutions to the issues:

Because of tight budgets all of these recommendations are budget neutral or revenue enhanced ideas.

1. Panel for GAL complaints: By establishing a panel for GAL complaints it removes the complaint process from the presiding Judge in a custody case. In effect the management of the GAL is squarely in the hands of the GAL, the parties to the case and the panel. The panel would be made up of an odd number of members that is suggested to be comprised of: (1) judge, (1) GAL, (1) Citizen as its core. To keep the cost to a minimum these panel members could be made up of volunteers who would meet on a monthly basis.

2. GAL recording of fact: Traditionally the recommendations that a GAL makes is based off of the information he/ she has gathered during the course of an investigation. This information is then composed into a recommendation by the GAL. The issue is that these recommendations are based on hearsay with little or no fact involved. When presented to the court this is then taken as fact by the court system. So for example if a GAL recommends to the court that restricted visits to one parent or grandparents is in the child’s best interest the court takes this recommendation as fact. There is little or no fact to back up this kind of recommendation other than the opinion of the GAL. If as a result of this recommendation a dispute results it is now up to the party that the recommendation is made against to fight the GALs recommendation. The other party only has to accept. This current model is also open for abuse by the GAL – whether intentional or not.

If on the other hand the GAL has been recording facts, taking photos and bases the recommendation on this recoding of fact, then there is less opportunity for dispute by one party vs. another. It is also harder for the GAL to abuse the situation. Couple the recording with transparent communication (see point 4) and disputes between the GAL and parties involved should be nonexistent. It also makes the GAL accountable for her recommendations. Part of the oversight issue.

3. Elimination of ex parte between Judge and GAL: According to the standards for GALs ex parte communication between the presiding Judge and GAL is allowed for if it is in the best interest of the child. Ex parte communication though is a case before the case. By allowing this type of privileged communication the GAL is able to present a case before the judge has heard the case between the parents. This removes any neutrality the Judge may have had. It also eliminates any fairness that the proceedings may have had. Allowing ex parte communication allows for protected court sanction abuse by a GAL.

4. Open transparent communication: By making standard open communication between the GAL, the lawyers and the parties involved levels the “playing field”. It also makes sense – common sense to openly communicate to the parties involved and encourage that same communication between them.

A GAL is able to do the following:

– Observe and document the living conditions of the parties.
– Meet with the child
– Require the parties to document their positions regarding complaints or disputes that arise against each other
– Document the factual issues that the parties agree on

Most GALs will meet with the child to understand the child’s perception of his/ her living condition. The other three are rarely done if ever. The GALs role because of their ability to document in real time is why the GAL can be effective in helping the judge make custody decisions. Documentation of what is observed. Taking photographs of the living conditions that the child will be exposed to. A photograph is hard to dispute by a lawyer, a GALs recollection of the scene can be. Furthermore the GAL can subpoena records to substantiate data collected.

As data is being collected it should be shared between the parties. It will give both parties an opportunity to correct any errors that the GAL may have made in recording information. Any dispute would be done in writing. Sharing the information also allows both parties to suggest further areas for the GAL to investigate. In the sharing of information the GAL should do the following:

– Provide a summary of the initial interview that was had with the parties.
– Provide copies of the photos taken of the living conditions to both parties
– Provide copies of the other’s response to any questions
– Provide a summary of the home study
– Offer the opportunity for follow up investigation.

If there are any disputes between the parties. For example a dispute over the arrangements of child pick up and drop off and how it happened. The GAL should immediately ask for a written version of what happened from both parties. Once the GAL has the reports the GAL should provide copies to each party so as to allow the parties to respond.

Often disputes could be avoided if there is an understanding of not only what the GAL is or has been doing but if the GAL is also making sure the parties are well informed of what the other is thinking. Not knowing or understanding the process the GAL is using will create an environment of mistrust with this person and can lead to stonewalling the GAL and their efforts.

5. GAL billing standardization: As part of having open communication with the parties the GAL should have a standard billing practice. This should be across the board. Billing should be clear and transparent to the parties involved. Having line items such as:

– 2/19 Email .50 hr
– 2/20 Phone 1.0 hr
– 2/21 Conference 2.0 hr

or

– 2/19 E .50 hr
– 2/20 P 1.0 hr
– 2/21 C 2.0 hr

Does little to help the parties involved understand what exactly the GAL did. Who was the GAL phoning on 2/20? Was it someone related to the case or was the GAL calling a friend? We do not know because the bill is not transparent. In addition, billing or invoices should be on a monthly or bi-monthly cycle. There are instances of GALs that bill only when the case has gone to court. The parties involved can be in for quite a surprise. This type of billing can put unnecessary stress to a situation that is already stressful enough for one or both parents. A GAL should be paid for the work he/ she does assuming he/ she does the work contracted for. Because it is listed on a bill does not mean the GAL is entitled to that item. There has to be an understanding of what was done otherwise those having to make payment will feel they are being taken. Part of this though involves an understanding of what the GAL has done.

6. Standardized complaint process for District Court/FM and Supreme Court: There should be a process that is standardized for filing a complaint at the District Court and Supreme Court levels. Many states have a form that spells out what is needed and can be attached to the actual complaint itself. In addition as a way to weed out complaints for the sake of complaining against a GAL it is recommend that a cost be associated with filing the complaint. By placing a cost associated with filing a complaint the hope it that only those who have a legitimate complaint about the GAL will follow through and not someone who is upset because they were unwilling to compromise over a sound recommendation.

7. Posting of complaints: Posting of complaints against GALs online will allow parties in custody disputes to determine whether or not a GAL being recommended should be used. In addition any positive feedback on a GAL should be posted. A sort of Angies list for the Judicial Branch. I want to be an informed consumer and there is currently scant information about GALs available let alone about how they are to function in their role. Allowing people to rate their GAL would also allow the Judicial Branch to see in real time if there are issues with a particular GAL, court house or Judge.

8. Safety of the Child: Currently the standard used by the judicial branch and GALs as well as DHHS is “in the child’s best interest”. This ‘standard’ in theory sounds good as who does not want what is best for their child? The issue here in using this standard is that there is no way to measure what is in fact “in the best interest of the child”. When a GAL makes a recommendation and claims that if the recommendation is not followed the child will develop into a “Unabomber” is this really in the child’s best interest? Or if a GAL ignores bruises and cigarette burns on a child? Is that in the child’s best interest? The GAL may often ‘feel’ that the situation the child finds him or herself in is the best. Why is it in the child’s best interest to prevent the parties from having a better understanding of the work that the GAL has done? “In the best interest of the child” is an ambiguous term that is open for abuse and interpretation.

Changing to “Is the child safe” on the other hand allows the GAL to measure whether or not a child would be safe in a given situation. Is the child at risk in unsupervised visits with the grandparents? If so then what is the reason? Is the child safe living with a parent that is currently on prescription drugs or has a history of mental illness? If the child is safe in these situations then why? “Is the child safe” allows all parties to determine whether or not, how and why a child develops and lives is truly safe. What dangers would come into the child’s life and how will those dangers impact the child. Is going to an art camp really all that bad for the child? How will it impact the child’s safety? I think it is safe to say that interacting and being exposed to different situations that encourage a child’s development is in the child’s best interest and poses no real threat to the child’s safety. Quite often when a GAL indicates that it is or is not ‘in the child’s best interest’ and then questioned the GAL has no answers.

There are problems with the GAL system and unfortunately the GALs that do have integrity are lumped unfairly with GALs that are deficient in their services. Serious change is needed for the families of Maine. Serious change is needed for the safety and best interest of the child.

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To make suggestions on ways to improve the system, please submit those by July 1st 2012  to: lawcourt.clerk@courts.maine.gov