As we near the end of the Judicial Branch’s time for public postings (July 1st), we have been reflecting on two questions: What have we learned about the nature of the Guardian ad litem problem in the last 6 months or so? And where should we be headed? One might add an additional, different thought: where is the Judicial Branch headed- with or without us? To our thinking it is all about dysfunctional structural design and the need to re-structure and re-define Guardian ad litem roles and relationships that is the center of the problem:
THE ESSENCE OF OUR CONCEPTUAL ANALYSIS OF Guardian ad litems, THE COURT AND THE PARTIES:
To cut to the core of the situation, we would say that the Guardian ad litem’s role at the present comes between families- and the judge in divorce and custody cases and adds considerable, additional complexity to any divorce dispute. Just having a Guardian ad litem adds significant numerical relational activities to a divorce case. With three players in a divorce: a plaintiff, a defendant and a judge, each person (or their lawyer) has 2 relationships to address. For the 3 players, there are a total of 6 relationships to deal with. When you add a Guardian ad litem to this mix, the plaintiff, the defendant, the Guardian ad litem and the judge (4 people) each have 3 relationships to deal with, or 12, doubling the numerical complexity, “more moving parts”, more lines of communication to keep straight- and this without adding a child (or children). The Guardian ad litem largely functions as an interface agent (or even a barrier) between the parties and the judge, screening, filtering, shaping and distorting what the judge gets to hear in a before court preview. The Guardian ad litem “brokers” the idea of what the case is all about and how to deal with it to the judge. Inevitably this is to the detriment of one of the parties. Guardian ad litems are treated by courts as if they were “experts”, and, as such-without actual expertise, they put a subjective personalized “spin” on what is going on in families for the judge’s indoctrination. This occurs, both in the courtroom and in various forms of private communications. As judicial appointees, as the eyes and ears of the judge, who has appointed them, the judge’s “eyes and ears” have huge power and influence with that judge over the fates of children and families. Justice ceases to be blind.
What is troubling to us is that Guardian ad litems- even the best of them- obliterate any chance of a fair, fresh hearing and open decisions openly arrived at, because, by design, Guardian ad litems are the “judge’s eyes and ears”. Guardian ad litems interpret the facts, present judgements/opinions about the two parties and roll out recommendations for custody. Because of the way the laws relating ‘ex parte’ and Guardian ad litems are written, these crucial pieces of information are frequently delivered to judges ‘ex parte’, with caveats of it “in the child’s best interest” or “dangerous if not done ‘ex parte’ “. Opportunities to challenge a GAL’s findings or opinions in front of a judge all too frequently don’t happen, because a case can go from beginning to end without a hearing, and if hearings happen, they occur after the “judge’s eyes and ears” have already characterized the case ‘ex parte’. It frustrates consumers no end, and it is the source of much consumer hatred and rage directed towards Guardian ad litems
This renders subsequent activities in court largely secondary, reactive or a meaningless ritual. A private, judge/GAL hearing has already occurred, with devastating consequences of a fair, open hearing. A hearing, a trial, or a negotiation gets almost totally corrupted by this kind of GAL/judge process. Furthermore, Guardian ad litems frequently magnify the intensity of the adversarial nature of a contentious divorce process. The parties present their contentions to the GAL one-on-one, as dramatically as possible, without the ethics and politeness of a lawyer. This grass roots advocacy polarizes and heightens differences and parental “fitness discussions”. And the GAL is persuaded by one end of the polemic and advocates for it with the judge. It can lead to the Guardian ad litem’s extreme misperceptions of the parties being presented to the judge, with extreme irrational recommendations about visitation and custody.
It spawns bizarre, radically polarized thinking, such as normal people denied visitation with their children for no real reason, because they are “caustic and controlling”, or anger management being prescribed without differentiating normal anger from various levels of clinically pathological anger. it leads to a knee jerk recommendation of counseling for no specified purpose, for no clearly spelled out duration, and no established goal or end point. Perhaps, inadvertently, it becomes a form of Guardian ad litem bullying, or what one writer has labeled “civilized violence”.
It results in judges becoming secondary (or rubber stamps) to the Guardian ad litem’s opinion co-conspirators in a cruel travesty of justice and fairness.
None of this is ever explicitly talked about. The old concepts of appearing in court before an impartial judge and arguing your case is the internalized model that parties bring with them to a divorce. The Guardian ad litem’s role is perplexing. It is said to be acting in the child’s best interest, which sounds good, but it quickly becomes apparent to parties that none of this is what is actually going on in reality. The Guardian ad litem has become a ‘de facto’ judge with no controls, no oversight, no removal possible , and the actual judge is becoming a powerful figurehead who mostly re-enforces the Guardian ad litem. What gets people upset is that they have had no instruction in these realities, and that they are forced to go through a bizarre, dishonest, “make believe” situation. The Guardian ad litem can talk with either party alone, and either party can argue his/her case in private with the Guardian ad litem. It depends on which party is the better solo debater, which party can capture the Guardian ad litem’s confidence, or which party captures the Guardian ad litem’s biases. Guardian ad litems conduct numerous, one on one, private conversations with the parties, which a judge cannot do. The Guardian ad litem then gives a synopsis of these one on one messages to the judge. It is ‘ex parte’ at one step removed with a GAL as an ‘ex parte’ agent or go-between. It destroys the court’s impartiality and renders judgements corrupted by a corrupt process. Any traditions of common law openness are dead.
It has taken us a while to grasp fully this process and to see its impact clearly. It isn’t something anyone wants to believe. It is the end result of trying to understand why the Guardian ad litem system can be so crazy, why a Guardian ad litem’s involvement frequently seems to make matters worse. In thinking about Guardian ad litem oversight/reform, one needs to look at the structural elements that are preventing the system from working. The Guardian ad litem/judge relationship is a key element that needs to be evaluated carefully and re-designed to be honest and user-friendly, since its present form corrupts fairness and the judicial process.
Planning must start with structural problem analysis before looking for solutions.