On Thursday May 9 at 2 pm at the State House in Augusta (room 428) there will be the final hearing on the bill LD872. What will it look like? We have caught glimpses of the direction the bill may take. Chairperson Sen. Linda Valentino we are told wants unanimous backing of this bill in order for it to move on. What will it look like? There are four points that we would like to see incorporated in LD872.
Guardian ad litem Job description: In the original LD872 (link to original concept – this is not the finished bill) it was presented that the role of Guardian ad litem is missing a clearly defined job description. This is one of the recommendations made by OPEGA in 2006. This Job description should be a statute – rules and standards are disposable as we have experienced many times. Judges have to comply with statutes.
As a suggestion for a Guardian ad litem description – A Guardian ad litem is a court appointed specialist in some contested divorces who has responsibilities to the court, the child and the parents. The Guardian ad litem is responsible to propose the best plan for the child(ren) custody arrangements in a disputed divorce. The starting point of a Guardians ad litem work is the presumption that every child needs both parents equally, unless, subsequently there are provable over-riding reasons to the contrary. To this end the Guardian ad litem collects relevant data for the court, interviews relevant people, forms a relationship with the child and proposes custody recommendations to the court, the child and the parties. In the event of a dispute about data or recommendations there should be an opportunity for open cross examination in court. Any additional activities undertaken by the Guardian ad litem with the parties which add to billable hours should be by contract for services mutually agreed to by the Guardian ad litem and the parties paying for the service and would not be covered by immunity
Guardian ad litem Complaint Protocol: The ability to file a complaint and having a clearly defined complaint protocol – Any complaint protocol should have a quality assurance and consumer protection goal. It should be readily accomplished ‘pro se’ by parties or others who have witnessed or experienced Guardian ad litem malpractice. It requires a comprehensive written instructions, standardized form to registering the complaint. An official should be available to aide those making a complaint and explain the steps in the complaint process. There should be instructions of what constitutes a legitimate complaint against a Guardian ad litem. Feedback and complaint status information are also needed. Apart from the investigation procedures there should be as much public transparency as possible and opportunities for full rebuttal at appropriate times in the procedure. When disciplinary or corrective action is taken this should be posted publicly for consumer protection. Dismissals of complaints should be explained to complainants in a way that is understandable.
It is inappropriate for a private – not for profit – organization funded by lawyers such as the Maine Overseers of the Bar to carry out public oversight function for Maine’s court officials of any kind at any status level. It is inappropriate for the legislature to authorize Judicial function of oversight to private organizations the Overseers of the Bar. A private organization has no immediate accountability to Maine Government or to the people of the State of Maine. The Maine Guardian ad Litem Institute (MEGALI – a trade organization of the Guardian ad litem industry) or Chamber of Commerce as not for profit organizations are conceptually not too different as private organizations with a special interest focus as the Overseers of the Bar. While the Overseers of the Bar – as a guild – boasts perhaps a more distinguished membership than some of the aforementioned organizations – they are heavily identified as special interest and have no accountability to the public. The Guardian ad litem complaint process belongs under the direction of public government surveillance in the Judicial Branch or as a function of the Bureau of Financial Regulation.
Guardian ad litem Immunity – should only cover for those activities specifically covered by the core job description (see section 1). All non core activities, such as service contracts with parties for various expanded mission functions would not be immune from liability.
Parents as part of the Child’s Best Interest. The best interest of the Child addresses the social, health and educational needs. In addition it needs an explicit statement that every child needs both parents as being in the child(ren) best interest. Every child(ren) should be presumed to need equal parenting time with both parents – unless there are specific proven reasons (hard evidence) why this should not happen. There should be an opportunity to debate this question fully in court. A Guardian ad litem opinion on “the best interest” is of no more value or validity than any other persons opinion. Facts should be what is needed to move from a 50/50 parenting split for a child. This shift in emphasis would aim at diminishing the destructive, competitive and adversarial atmosphere that is present in custody disputes – starting with equity of custody as a given. It would place the burden of evidentiary proof for less than equitable custody on the Guardian ad litem – and not the parties.
With LD872 we have a state to craft a role that works for the child, the parents and family as well as the courts. Or with LD872 our Representatives can pander to the powerful special interest that talk of equitable change for children and parents. Please contact our Representatives and help to educate them on the need for meaningful reform. Please contact us at MeGALalert@gmail.com for contact information on your Representative. Follow us on Facebook for up to date information on Guardian ad litem reform.