The Judicial Branch says, “No Problem” with Guardians ad litem. We say …

It may seem unusual to post a letter of resignation, but this letter has already received wide circulation by the Judicial Branch, so we felt the public should see it too.

Chief Justice Leigh Saufley
Maine Supreme Court

Dear Chief Justice Saufley,

It is with regret that I am submitting my resignation from the Judicial Branch Committee reviewing the Rules and Regulations for Guardians ad litem.  I had initially hoped that, my experience in hearing from many who have been affected by malfunctioning Guardians ad litem, and also from my contacts with many in Maine government (and elsewhere) that I might be able to add a meaningful perspective to the problems facing  the committee. At this point, after participating quite actively in some very pleasant discussions of two Judicial Branch committees addressing Guardian ad litem reform, I feel that I am such a micro minority that my input in the final analysis is perceived as essentially irrelevant, or even unintentionally insulting to the Guardians ad litem and those who support them.

The problem that I experienced is that the 20 people in the first committee – largely representatives of the “divorce industry”- and the 12 or so in the second, quite honestly and sincerely do not see a problem with the Guardian ad litem program as it stands. They see no problem with the complaint process either.  It poses something of a problem -solving paradox: 19/20 and 11/12 see no problem yet they are the dominant participants in a process allegedly aiming to make things better. The unasked question is: better for whom – for he public or for the “divorce industry”?  It is difficult to correct a problem, if the majority on a committee genuinely don’t believe there is a problem. The oft quoted, “only two complaints in two years”, seems to be the rationalization for this belief. For many discerning people, these numbers (and the structure behind them) hardly tell a very convincing story, but, as you know, sadly, there are no other numbers. So absent your statistics and other data, absent a belief that there is a Guardian ad litem problem, I am a voice crying in the wilderness, and the sole dissenter in every attempt at consensus.

The only answer that I know of to this particular conundrum is outside consultation from a reputable consulting organization that will look at the big picture, including rapidly growing consumer dissent. The public needs to be included. Such consultants should recommend a design that fits Maine’s children and families, one that addresses some of the issues noted below.

Our experience with a growing number of Maine families, has convinced us that there is a malfunctioning GAL program from a human perspective. It tells us that there are lots of as yet uncounted statistics out there. But you have to have modern IT methodologies to gather the numbers, you have to listen to those who are the living statistics and basically, you have to want to know. And its the complete absence of quality assurance, the absence of consumer protection (and the attitudes that go with each of these) that many find so troubling.

The problems that we would address to a consultant are: the absence of a standard job description for a Guardian ad litem, the need for Rules and Regulations that guide the functions of the job description, training that under girds both the job description and the rules and regulations and that reflects the difference between the differing knowledge, skill and experience of GALs from vastly differing backgrounds, the need for a ‘practicum’, or internship, for GALs, so that they are not using the public as experiential guinea pigs as they gain practical experience. The need for oversight of a program with a vast impact on Maine’s children and families. These issues all speak to the need for adequate up-to-date data for a system of program management. It can be done; other states do it.

It can’t be accomplished by those who see “no problem”.

All of these management items need grounding in the experience of actual, real life, service users. You need a board of consumers to participate in every aspect of design to keep it from being out of touch with exclusively top down views. It will be useful in educating the “divorce industry” professionals that there is a problem, when there is a problem. And, frankly, the problem right now is destined to get bigger until it is acknowledged as a problem and those affected by the problem are involved.

In addition to the problems of defining and building GAL identity briefly noted above, there are serious issues relating to process. Is statutory immunity for GALs in the public interest? What substitute does the public have if they are denied the ability to pursue claims of harm to themselves or their children from a GAL? Isn’t “quasi judicial immunity” one of several provisions that undermine accountability of GALs and that protect incompetent practitioners? Then there is the very troubling issue of ‘ex parte’ communications between GAL and judge, which in their permitted secret form allow for a “Star Chamber process”, a trial apart form the main trial that corrupts any pretense of due process.  ‘Ex parte’ makes the GAL into a court informer, paid by those against whom he/she is informing. It uses information obtained in interviews with parties in ways that indirectly cause them to testify against themselves. It urgently needs recognition as a problem and it needs correction. The Rules and Regulations for GALs governing confidentiality are currently so broad as to be meaningless. There is no profession in America that is as permissively unregulated of privileged and other sensitive client information. GALs have no functional restrictions governing confidentiality the way rules are currently written.

All of the above are clearly “not a problem” for GALs or others who work in the “divorce industry” but I can assure you they are a huge problem for the public that is forced to pay for them!  Understandably, the above issues are  threatening to those who work in the “divorce industry”. They strike at the core of their profession and their income, but there are devastating numbers on the other side of the equation. Fees that impoverish families that cause bankruptcy, that cause the loss of a home, that impair the future education of children- these are a part of the heartbreak in the GAL experience. There is also the use of the court’s most brutal techniques for GAL bill – collecting that may be legal, but it is no less repulsive for being legal.

To solve these problems with 19/20 participants or 11/12 who don’t see a problem, is a request for self-regulation with no impetus (or expectation?) for self-change. As a minority of one, I cannot be that much needed impetus for change. I can be much more effective in working for GAL reform outside of these committees, and can do so, very actively, once free of the current committee obligations without feeling compromised by two opposing commitments.

Many thanks for affording me a window on this process.


Jerome A Collins, MD

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