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January 20, 2015
It’s Time to Reset the System

This article should make anyone reading it feel uncomfortable.

I spent a substantial part of the first 25 years of my law career representing the interests of children whose families were in crisis. I probably have appeared in family court, juvenile court or probate court for more than 150 children, either as attorney for minor children (AMC) or as guardian ad litem (GAL). I served with pride for years on several appointed counsel lists in Fairfield and Litchfield counties, and treated my representation of each child as I would any other client. My anecdotal experience is similar to many other dedicated professionals who represent kids.

On more than one occasion, probably more than 10 occasions, the fees I earned from these appointments were spent buying food, medicine, diapers or school supplies, among other things, so my clients and wards might have an easier Wednesday than they had a Tuesday. I once put up $500 of my own money to try to salvage the summer so two of my wards might have vacation time with their dad. When the father complained it was not enough money, returned my check and canceled his vacation, I applied the $500 to his outstanding balance.

As my practice developed to a more privately retained model, I often accepted appointments as AMC or GAL at a substantially discounted rate. But some of the core principles remained. The Connecticut Supreme Court has repeatedly referred to the child’s best interests as the “paramount” consideration. When an AMC or GAL represents the interests of a child, your client or ward is rarely, if ever, in the wrong, and almost always just wants his or her parents to 0072econcile in some manner. I have never solicited an appointment as GAL or AMC. Occasionally, one of the party’s attorneys might call pre¬appointment to gauge my interest. While I am not shy about admitting that I have been paid for my services as AMC or GAL, I rarely was paid my full hourly rate from the outset, and even more rarely was paid my discounted rates in full at the end of the case.

Up until about 10 years ago or so, AMC and GAL practice was very different. The attorneys (those who represented the divorcing parties as well as those in the roles of AMC or GAL), counselors who work for the court system’s Family Services Office, and the family law bench maintained a collegial working relationship, and our dedication was appreciated. The parties did not seem as jaded as they are now, seemed much more receptive to reasonable advice and the cases moved through the process. The focus stayed where it was supposed to be, on the kids whose best interests are paramount.

But this was before it became open season on those same dedicated family court judges, Family Services counselors and the professionals who represent our children’s interests. Now, custody and access represent the last great battlefield, where cases with legitimate parenting issues wait with the mire of cases involving temper tantrums, control issues and the rants of the unhealthy.

The meanness and vengeance, which used to be directed at a party’s opponent, now are levied at the bench, Family Services and the lawyers involved. Disgruntled litigants now testify at judicial reappointment hearings, hold up dockets to argue otherwise insignificant issues, and then file suit against those who they perceive as having breached their “rights.”

I no longer accept appointments as AMC or GAL. And, as my wards one by one reach the age of majority, my open-ended appearances in these files one by one fall by the wayside. I now represent AMCs and GALs who may require representation in their cases, have been sued by disgruntled litigants or need a lawyer to collect their fees. Yet, while I can elect to shut down this part of my practice and no longer serve as GAL or AMC, the same systemic dysfunction remains and keeps other files from proceeding in an orderly manner because of clogged dockets. It is easy to point fingers and assess blame.

Instead, I offer the following plan of action, which refocuses us on what is really important: our kids’ best interests.

• Not every case involving parenting requires that an AMC or GAL be appointed, especially when a Family Services counselor’s evaluation will suffice. We make lots of decisions for our children every day, and give them little or no choice in the process: when they go to school, when they are seen by the doctor, etc. In the lion’s share of the contested cases involving children, the fight generally comes down to a few hours of weekly parenting time. Unless a child is of sufficient age and intelligence to express a preference, the enabling statute authorizes the court to exercise its discretion against appointing an AMC or GAL.

• The budget process should be amended so that the budget for the Family Services Office is a separate line item, and initially increase the funding for Family Services to its prespending cut levels, with an eye toward increasing its budget to accommodate the work required. Family Services has lost some of its best and brightest caseworkers, and these dedicated professionals have by and large either not been replaced or replaced with a more inexperienced roster. Practice Book §25-62 makes Family Services the default candidate for appointment as a GAL. If any readers have been part of any case where the court has appointed Family Services as a GAL, I expect it was a rarity, as I know of no case.

Properly funding Family Services may be the most important gift we could give the children of divorcing parents.

• Use the mechanisms in place to protect the children’s representatives, and strengthen the immunities for the professionals who are appointed as GAL. Since the default option by practice book rule is to appoint Family Services as GAL, private attorneys and mental health professionals serving in that capacity should enjoy the same protections as quasi-judicial officers that their counterparts in Family Services enjoy.

When sued for their doings as GAL, the attorney general or Judicial Branch counsel should defend the GAL or AMC, and the state should indemnify against such claims. To the extent Connecticut General Statutes §4-141 needs to be clarified to include GALs within the purview of C.G.S. §5-141d, the General Assembly should do so. These same protections should also apply to privately retained custody evaluators. GALs, AMCs and custody evaluators should be able to go about their doings without the fear of defending themselves in state or federal court.

• As AMCs and GALs, we have to recognize our limitations. We are not the court, and are not arbiters of the law or facts. We cannot change court orders or encourage others to violate court orders. We are not the parents, or even have authority to act in loco parentis. Attorneys who serve as GALs are not mandated reporters. Newman v. Newman, 235 Conn. 82 (1995), was a landmark case for children’s representatives, since it validated the independent legal position children hold in cases involving their care. This was buttressed later by Carrubba v. Moskowitz, 274 Conn. 533 (2005), which granted AMCs and GALs immunity in their doings. However, nothing in either case changed the basic nature of GAL practice, and certainly did not expand the powers accorded to the children’s representatives.

• Finally leaders should lead, and to the extent that they have stopped leading, they should get back to it. This applies to the legislature, the Judicial Branch, the parties’ lawyers, the GALs, the leaders of the bar and the leaders of the GAL reform movement. Between July 1, 2008, and June 30, 2013, the Judicial Branch identified 53,474 cases filed as either custody applications or dissolution of marriage cases involving children. Yet, we have successfully allowed 50 or so of the most vocally dissatisfied customers to control the debate. I note that I found no matched sets of parents arguing for reform—it was the parent who perceived himself or herself as the “loser” in a custody case who joined the debate on the side of “reform.” While this is not universal, it is predominant. So long as we resolve custody disputes in an adversarial forum, this struggle using the children as a tug-of-war rope will not allow itself to end. The contempt power, including the remedy of incarceration, is underused to compel compliance with court orders. If litigants understood they legitimately faced a night or two in jail for violation of a court order, it follows that litigants would show more of a tendency to remain compliant with those orders. If litigants and their counsel understood the ramifications for disorderly conduct in the presence of the court under C.G.S. §51-33, and courts showed a real inclination to use this power to restore order in family courtrooms, the disorderly conduct will be reduced.

The Code of Conduct for Counsel for the Minor Child and Guardian Ad Litem, which was promulgated by the Judicial Branch in response to the legislative mandate in Public Act 14-3 and P.A. 14-207, should go a long way to bring sanity back to custody practice. While not a perfect document, it is well thought out and provides real standards for AMC and GAL practice. In a prior edition of the Law Tribune, I argued that GALs should be wary of entering settlement discussions. Many of those concerns would appear to have been addressed by the Code of Conduct, in addition to other documents promulgated by the Judicial Branch. (See, e.g., Form JD-FM-227, which authorizes the GAL to “facilitate settlement of disputes,” not directly participate in those discussions.) Paragraph II(g) of the Code of Conduct requires GALs and AMCs to avoid “any actual or apparent conflict of interest or impropriety.” This concept brings the conduct of GALs and AMCs more in line with Rule 1.2 of the Code of Judicial Conduct, rather than Rule 1.7 of the Rules of Professional Conduct. Since GALs enjoy the protections of quasi-judicial status, it logically follows that they be held to the same or similar standards as judicial officers.

If enforced properly, these rules should begin to restore the public’s confidence that the focus go back to the children’s interest—where it should be.

Divorce & Family Law