Accountability of Lawyers, Guardians Ad Litems, and Parenting Coordinators of the Family Courts

The State of Maine is on the right track

“Without a GAL, parties will go back to the old practice of dragging their children into court to testify against their parents,” said Hollander. “The parties will pay top dollar to get pediatricians and counselors to testify and will put their families’ fates in the hands of the very judges that they have come to scorn.”

 AUGUSTA, Maine — Divorces and child custody disagreements can be messy and when parents can’t resolve their differences alone, courts appoint a guardian ad litem to investigate the situation and make recommendations.

But there are many people, dozens of whom testified Thursday afternoon in Augusta, who say major flaws detract from the system, ranging from guardian ad litems who charge too much to others whose recommendations are flawed and incomplete. According to testimony heard Thursday by the Legislature’s Judiciary Committee, there are nearly 300 guardian ad litems, or GALs, in Maine.

Numerous people told stories about GALs whose errors and carelessness resulted in unfavorable custody arrangements with their former spouses. One of them was Sen. David Dutremble, D-Biddeford, whose children were assigned a GAL during his divorce in 2004. Dutremble sponsored one of four bills on guardian ad litems that were presented on Thursday.

“I can assure you that the appointment of a guardian ad litem was one of the worst experiences of my life, and I am a full-time firefighter,” said Dutremble. “A GAL’s position is to remain neutral during their appointment to the child and to determine what is in the best interest of the child. This is where the real problem existed in my case. … My guardian was anything but neutral and many guardians continue to remain anything but neutral to this date.”

Other people at the hearing testified that the vast majority of guardian ad litems operate responsibly and equitably. One of them was Ethan Stevens of Chelsea, who said in written testimony to the Judiciary Committee that his first experience with the guardian ad litem system was in 2010 when he began the divorce process after a seven-year marriage.

“I am extremely grateful to have had the services of Maine’s current guardian ad litem system as well as the competence and experience of our particular GAL,” wrote Stevens. “I went from expecting to see my children every other weekend or some similar arrangement to one where custody is split almost in half. The guardian ad litem system is a vital tool to Maine’s overburdened court system.”

Reforms to Maine’s guardian ad litem system have been eyed for years. In 2006 the Legislature’s investigatory Office of Program Evaluation and Government Accountability released an extensive report on the issue. It found that the system has insufficient oversight on any part of the process, including that judges in many cases cannot be confident that they are receiving complete and accurate information.

“Under these circumstances, judicial decision in child protection cases may not be optimal,” reads the OPEGA report. “Because of the way the court administers GAL services, there is little documented, standardized and accessible data to analyze. Therefore, while OPEGA can confidently state that compliance and performance inconsistencies are readily detectable, we cannot quantify the extent of compliance with mandated activities or the effectiveness of GALs themselves. Clearly, there are high-performing, dedicated and effective GALs. There are also too many reports of GALs with questionable performance, particularly regarding contacts with children and interactions with key individuals in children’s lives.”

The Legislature’s Judiciary Committee on Thursday heard testimony on four bills proposed to improve the system:

• LD 522, An Act to Amend the Guardian Ad Litem Laws, sponsored by Sen. Linda Valentino, D-Saco, which seeks to implement the recommendations of a 2012 report by the Guardian Ad Litem Task Force, which was appointed by Maine Supreme Court Chief Justice Leigh Saufley. The report calls for the Supreme Judicial Court to adopt a range of rules covering registration and certification, qualification, practices, training and discipline.

• LD 551, An Act to Establish Certification Standards for Guardians Ad Litem, sponsored by Rep. Joseph Brooks, I-Winterport, which would direct the Supreme Judicial Court to establish certification standards for guardians ad litem.

• LD 872, An Act to Improve the Quality of Guardian Ad Litem Services for the Children and Families of Maine, sponsored by Sen. David Dutremble, D-Biddeford, which is based on the recommendations in the OPEGA report.

• LD 975, An Act to Ensure Accountability of Guardians Ad Litem and Parenting Coordinators, sponsored by Rep. Lisa Villa, D-Harrison, which would require a range of training, cap GAL fees, remove the quasi-judicial immunity provided to GALs and parenting coordinators, and open the door for litigation against GALs and parenting coordinators who falsely accuse parties of abuse or neglect or who intentionally exclude relevant information from reports.

Michael Cianchette, chief legal counsel for Gov. Paul LePage, said the governor supports strengthening the system.

“The governor has a strong interest in these efforts, both as someone who has mentored young people as well as his role as chief executive,” said Cianchette. “He has heard firsthand the problems that can exist in our current system, whether it is outrageous billings or odd recommendations to the courts that could result in very negative outcomes.”

Cianchette said LePage supports a current initiative by the Judicial Branch that would cap what GALs can charge their clients, as well as increased oversight, standards of practice, continuing education and immunity.

Toby Hollander, president of the Maine Guardian Ad Litem Institute, took issue with many of the statements made Thursday about GALs and opposed some of the proposed provisions. In particular, he called a proposal to strip GALs of their quasi-judicial immunity, which is contained in Villa’s bill, a “mean-spirited” measure that could destroy the entire system.

“Without a GAL, parties will go back to the old practice of dragging their children into court to testify against their parents,” said Hollander. “The parties will pay top dollar to get pediatricians and counselors to testify and will put their families’ fates in the hands of the very judges that they have come to scorn.”
The bills have not yet been scheduled for further work in the Judiciary Committee.

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