“It is a conflict of interest to have the regulators also be the regulated.” Dr. Charles Geisst
The Guardian ad litem system in Maine needs an overhaul, starting with clearing up its basic goals and objectives. Is the Guardian ad litem supposed to be a “child advocate”, acting like a lawyer for the child, independent of the judge and the “parties”? Or is the Guardian ad litem paid for by the parties, but acting as a judicial informer, a private detective for the court sometimes even a secret informer who feeds information to the judge but not the parties? In this latter arrangement, the fact that the “parties” are underwriting these sometimes secret communications to the judge about them seems particularly outrageous. In our opinion, in Maine, the GAL role shifts back and forth; sometimes one, sometimes the other. With no “informed consent” and no “road map”, it baffles consumers to no end.
We sense that the problems are greatest when a guardian ad litem functions as a private investigator for the judge, in a system without any meaningful oversight. Judges see a GAL’s court performance, read a GAL’s written reports but the actual case work flies under the judicial radar. While many GALs have the professionalism and ethics to adhere to the standards, there are “rogues” in every profession, who take wide liberties with the statutes and do their own interpretation of things. Unfortunately, there are no functional checks on a “rogue” GAL, and families and children suffer. Judges come to rely on the GAL as court informer, and are reluctant to make unfavorable judgements against them or to remove them. In our opinion, it leads to an unhealthy partnership between judge and GAL that may corrupt the fairness of the court and judicial impartiality. It has the potential to become very cozy and professionally incestuous.
Having a judge remove a GAL can be almost as difficult as petitioning him/her to divorce his/her spouse. The Maine Guardian Ad Litem Institute claims that there are already ways of taking corrective action against a “rogue” GAL. True, but such action is fraught with confronting very similar judge/GAL “work partnership” issues for those who would complain. To begin with such steps require that one ask those who license and train GALs to do a quality assurance review of a particular GAL that inevitably reflects on the quality of their selection process and their effort at training. It is asking the fox to assess reports of security slips in the chicken house. A complaint or an appeal to a higher court can also be very expensive. Charges can run to $6000.00 (or more) in legal fees to present a motion. This is beyond the means of most middle class families.
Then too, statistics about successful removal or corrective action against GALs are hardly encouraging. Two reprimands in two years- one a verbal reprimand. Foxes will almost always determine that chicken house security is in fine shape, and complainers are ‘bad sports”. More worrying, if you fail to remove the GAL, or if your complaint falls on deaf ears, you and the GAL have an immediate, intense “conflict of interest”. It is impossible for a GAL to claim objectivity in a case when a client has tried to fire her/him or get him/her disciplined! Bad times are ahead! Your future visitation rights with your child are apt to be very frugal! And you are apt to have the GAL/court prescribe some form of “corrective therapy” for your bad attitude. How about, say, 10 years of “anger management therapy”? The client doesn’t have any trump cards in this game!
One of the complaints about GALs- that occurs frequently in states from Maine to California- is the issue of ‘ex parte’ conversations between the GAL and the judge. ‘Ex parte’ refers to private conversations, without the knowledge or presence of the other parties to the case. This type of one-on-one conversation is frowned on in common law as an activity that can bias the judge, and that can affect judicial impartiality. It goes on in Maine, between judges and GAL, as elsewhere, and it turns the GAL into a judicial “catspaw”! Plaintiffs and defendants can be blindsided by judicial actions that seem to come out of nowhere, but are the result of ‘ex parte’ conferences. It renders the court a no longer level playing field. The foundation for judicial judgement is laid by the GAL in the ‘ex parte’ discussion, the courtroom hearing is a formality that can be a waste of time and money.Our sense is that over time, the judge/GAL relationship has become unhealthily close, a work-related partnership or friendship. This happens all of the time when people work closely together over an extended time. They get to know one another well and develop a work rhythm and share common views on their work. In a formal court motion, any complaint by a consumer about a GAL is fraught with challenging one partner in the judge/GAL working relationship. You are challenging a complex work relationship and, in some instances, a friendship. It makes a formal complaint about GALs akin to asking the judge to “divorce” his GAL!. It is no wonder so few complaints receive corrective action! At any level of the system!