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The Honorable John Romero

The Role of a Guardian Ad Litem

At some point during the divorce, you may be asked or ordered to surrender the majority of your parental responsibility to a stranger.

I am not talking about revocation of parental rights, or removal of the children due to a finding of child abuse. Even the temporary removal of the children from your home by State Protective Services requires extensive documentation and leaves you with significant rights to contest the action. Revocation of parental rights is by itself, a separate court proceeding requiring discovery and a trial.

No, I am talking about the appointment of a Guardian Ad Litem. There is no area of New Mexico divorce as poorly defined as the role of a Guardian Ad Litem and no role as potentially dangerous.

In most states, the role of the Guardian Ad Litem is well defined, the attorney represents the children’s best interests in the court proceedings. But as a recent Albuquerque Journal article noted:

“Some judges have tried to streamline the process by giving guardians ad litem the power to make decisions that the parties must abide by until a judge says otherwise”.

This is a horse of another color. You must follow the orders of the Guardian Ad Litem unless you request a hearing and protest them. There is no limitation. These Guardian Ad Litem orders can range from if your daughter can play basketball, to where you go to church, to what classes your kids take in school, to when you see your kids.

Guardian Ad Litem – What the Laws Say as Compared to What the Judge Does

            The term itself is clear—‘Ad Litem’ is Latin “for the purpose of legal action only”. New Mexico statue defines the role as follows:

 32A-1-7. Guardian ad litem; powers and duties.

A.     A guardian ad litem shall zealously represent the child's best interests with respect to matters arising pursuant to the provisions of the Children's Code [32A-1-1 NMSA 1978].   

B.     A guardian ad litem shall represent the child during any appellate proceedings.   

C.     Any party may petition the court for an order to remove a guardian ad litem on the grounds that the guardian ad litem has a conflict of interest or is unwilling or unable to zealously represent the child's best interest.   

D.     When a child's circumstances render the following duties and responsibilities reasonable and appropriate, the guardian ad litem shall:   

(1)     meet with and interview the child prior to custody hearings, adjudicatory hearings, dispositional hearings, judicial reviews and any other hearings scheduled in accordance with the provisions of the Children's Code;   

(2)     present the child's declared position to the court;   

(3)   communicate with health care, mental health care and other professionals involved with the child's case;   

(4)     review medical and psychological reports relating to the child and the respondents;   

(5)     contact the child prior to any proposed change in the child's placement;   

(6)     contact the child after changes in the child's placement;   

(7)  attend local substitute care review board hearings concerning the child and if unable to attend the hearings, forward to the board a letter setting forth the child's status during the period since the last local substitute care review board review and include an assessment of the department's permanency and treatment plans;   

(8)  report to the court on the child's adjustment to placement, the department's and respondent's compliance with prior court orders and treatment plans and the child's degree of participation during visitations; and   

(9)     represent and protect the cultural needs of the child.   

E.     A guardian ad litem may retain separate counsel to represent the child in a tort action on a contingency fee basis or any other cause of action in proceedings that are outside the jurisdiction of the children's court.  When a guardian ad litem retains separate counsel to represent the child, the guardian ad litem shall provide the court with written notice within ten days of retaining the separate counsel.  A guardian ad litem shall not retain or subsequently obtain any pecuniary interest in an action filed on behalf of the child outside of the jurisdiction of the children's court without permission of the children's court, pursuant to rules promulgated by the supreme court.    

F.     In the event of a change of venue, the originating guardian ad litem shall remain on the case until a new guardian ad litem is appointed by the court in the new venue and the new guardian ad litem has communicated with the former guardian ad litem.   

The law is clear, the role of a Guardian Ad Litem is to represent the children’s interest before the court-- the Guardian Ad Litem is the children’s lawyer.

In reality, the Guardian Ad Litem is given the power to assume as much or as little of the parenting role as the Guardian Ad Litem wishes. This is how my attorney explained the role to me and this is how the order appointing our children’s Guardian Ad Litem reads:

The guardian as litem should investigate ongoing issues relating to the children as to what constitutes their best interest and report to the parties his conclusions and recommendations. The parties should immediately follow such recommendations until such time as they bring the matter before the Court if a party wishes to challenge such recommendation….

The parents shall cooperate fully with the guardian ad litem as he requests.

Significant difference between the law and the practice. The Courts created a role that is not defined in statute.

Eyes Wide Open

I made the decision to ask for a Guardian Ad Litem (GAL) with full knowledge of what was involved. I discussed the decision with my attorney, my parents, my brother the attorney, and probably with the kids. I delayed the decision as long as I could.

            In my case, it was a decision to surrender my parenting rights in order to protect the children from their mother and to bring some comfort to their lives.

            In the few weeks I struggled with the decision, my separated wife took the following steps:

·        Took our oldest child to a doctor without my knowledge. This doctor was practicing as a psychiatrist although she was not board certified. Unknown to me at the time, she prescribed anti-depressants for the child that had just turned thirteen.

·        Turned me in for child abuse

·        Turned the oldest son in for child abuse

·        Offered in mediation to take the two youngest children while I took the oldest and we would both agree never to see each other or the respective children again.

·        The children began telling me stories about physical abuse current and in the past

·        While accusing me of not taking care of the children’s health, she refused to let them into counseling or to see their doctor regarding our different versions of their health requirements.

·        Using the children as messengers between us and using them to make demands on me.

·        When finally order to put the kids in counseling, she got family therapy so she would be in the room with the children

·        I began to receive email about the children from an unidentified ‘friend’ of my wife. This pattern repeated itself over the next two years and in one hearing my now ex told the judge it was actually her emailing.

Looking back, these specific incidents seem minor, especially in light of the events that followed. Yet, on a daily basis my ex demonstrated a lack of control and responsibility that caused me concern about not just the chaos she created but the actual safety of the children.

            I realized my control over the children’s fate had been largely surrendered to a woman that I had spent fifteen years trying to keep sane and that it was going to be a while before I could do much about it. The image of Yates drowning her five children in Texas haunted me. The ultimate justification is my ex wife’s decision to have me murdered with the children in the house.

I imagine that my ex wife’s attorney talked her into the GAL as a way of getting me out of her life (see above bullet about taking the kids and running).

Often a Judge will decide to appoint a GAL. Based on the comments made, I presume one reason is due to the inability of the parents to communicate. Another reason is the inability of the parents to agree on anything regarding the children. A final reason is a special needs child that generates a desire in the judge to ensure the child’s needs are addressed. The presence of Domestic Violence allegations or a restraining order will also increase the odds of the judge appointing a GAL.

Expectations

Expectations abound within the appointment and actions of a GAL: expectations on the part of the judge, the parents, the lawyers, the GAL, and the children.

The judge appoints a broad power GAL as she sees the case disengaging and sees the children in danger, maybe not physical danger, but danger of disruption beyond what a judge is willing to see. Again, society places a difficult burden on the Court with poorly defined resources.

The judges realizes that even in difficult cases, the disruption associated with a divorce is temporary, a crisis that the family must work through. An effective GAL provides the oasis of stability during the chaos until the family can work through their emotional issues and get back on track of placing the children first.

For example, Mom wants son to join little league. Dad refuses for various stated reasons: 1) would interfere too much with the limited time he has with all the children, 2) the son does not like little league, 3) he doesn’t want to attend games that Mom and her new boyfriend will be at and so on. The son is either not talking or agreeing with both parents.

Every family had methods of solving these issues when they were together, usually one parent made a decision and the other supported it.  Dad might complain that the kids were in too many activities, but he went along with it. Mom might complain that the kids did no activities, but she went along with it.

Now the divorce comes along and no one is going along with anything. The options get silly. The parent’s attorneys get involved at a combined rate of about three hundred dollars an hour. Still no agreement, so one attorney files a motion at a cost of about four hundred dollars. A hearing is set and everyone argues about it in front of the judge at an additional cost of at least another three hundred dollars. The judge makes a decision and either one side is mad, or both sides (this was Judge Kass’s rare gift). The judge walks away feeling that this was a stupid matter for the Court to decide and feeling a little guilty because she does not really know what is going on with the child.

If it happens again, she appoints a broad power GAL. Her expectation is that the GAL will learn enough about the children and the family to make a better decision then she does cold. She also expects the decision to cost less, maybe two hundred dollars as opposed to the one thousand dollars spent on the hearing and the events leading up to the hearing.

Now the appointment of a GAL makes some sense. It is a practical method to extend the arm of the judge and help make better decisions involving the children until the crisis of the divorce settles down. These are the judge’s expectations.

The parents’ expectations are simple, they expect the GAL to agree with them and disagree with the other parent. Sometimes this makes for a GAL still on the scene years after all other issues are decided.

The lawyer’s know they are going to do well financially off your divorce, so most of them would prefer not to deal with emotional issues and the children. They will bill you for something else.

GAL expectations vary according to temperament and skill. There are GALs that focus on helping children. There are GALs that focus on helping themselves. Even the best GALs get tired of calls every night for what, to them, are minor incidents such as the children showing up late or with mud on their shoes.

The children just want it all to go away.

From Theory to Reality

The judge cannot meet her expectations without extending her authority to the GAL. Here is where the danger begins.

            Let me illustrate out of my own case.

            As noted, I implemented the GAL, but the GAL was unaware of this. The order read as a stipulated order between the parties. The GAL had no way of knowing if it was me, my ex wife, or both that requested his involvement. Honestly, it could have been both. My ex may have pushed for the GAL also.

            When I discovered that our oldest son was seeing a psychiatrist without my knowledge and in violation of state law I decided we needed the GAL immediately. I called my attorney to find out what the status of the GAL was. He informed me that the order had been filed but he did not know if the GAL had received his retainer. The retainer was to be paid out of community funds held by my wife’s attorney and he was fighting about following the order.

            For what was neither the first nor the last time, I questioned my attorney’s legal knowledge. Did it matter if the retainer had been paid? The GAL was an officer of the court and there was a legal order filed giving him the responsibility. My attorney agreed and I got off the phone with him and contacted the GAL.

            Here is the short version of the events leading up to the call. My ex wife initially refused to allow my children into counseling. When I got a court order directing counseling, she ignored the order in reference to the younger children and decided that only the oldest child required counseling. She sought a counselor for our teenage son through a women’s advocacy group that one of the principals later in the case would label a ‘cult’. They provided her with a counselor orientated to her views to the extent that when the counselor was later fired by the GAL, she became my wife’s counselor. When the Protective Services finally removed the children from my ex-wife, the Counselor took the position that my ex was an outstanding mother and stood by her. I was surprised the law enforcement officer did not find this counselor holding my ex wife’s hand when she went out to hire the hit man.

            To further control the counseling, my ex wife got ‘family therapy’ approved. This meant that she sat in on all of my son’s counseling sessions. My son was also referred to an MD practicing as a child psychiatrist, although not board certified. The MD decided that our son required medication to treat his ‘depression’. For about six weeks this was the situation before my son finally let me know what was going on. Actually, I believe he enjoyed fighting all the adults and was scared that Dad would agree with the decision to medicate him.

            Our oldest could not remember the name of the doctor, but his sister did. I called the office and discovered when my son’s next appointment was. It was at this point I contacted the GAL.

            I told him what I knew, basically that my son was seeing a psychiatrist without my knowledge, that there was an appointment this Thursday and that I intended to attend this appointment to assess the situation. The GAL agreed to my action.

            The consequences of that intervention were enormous and extended forward for years. One consequence was my first interaction with the GAL was adversarial.

            Now that I presented myself as the noble parent protecting his child from the anti-male forces attempting to medicate him with drugs known to be dangerous to teenagers, let us look at it from the GAL’s side.

            First, the research on the negative impact of depressants on teenagers was not published until several months later.

            Second, there is no doubt that my ex wife’s first conversation with the GAL included her stories of long term physical and emotional abuse on my part and a colorful description of my domineering pathology.

            Third, a licensed counselor and a medical doctor took positions supporting my wife. The medical doctor went so far as to call my wife’s attorney to discuss filing a restraining order against me (as indicated by the lawyer’s billing records).

            Fourth, I was protecting my child from what was, unknown to the GAL at this time, the second or third assault on this child by his mother. I am sure I was not gentle in my advocacy on the behalf of my child.

            Result – the GAL ordered the thirteen year old child to take the medication on the advice of the doctor and counselor.

            What saved me was the absolute reasonableness of my response and my refusal to budge. Reason – if the child was unhappy in his environment, then change the environment. Instead of drugging him, send him to live with me. Let’s see if that works out. Also, let’s schedule a second opinion on this with another doctor. This is too serious a step for one doctor to make the decision.  Refusal – See you in court GAL, I am not doing this and I will not instruct my son to do this when he also believes it is wrong.

            After this first incident the GAL and I got along fine. This is not to say that I was not continually frustrated and that we always agreed. In September, I asked that the two youngest children move in with me. I supported my request with a five page letter outlining all of the problems my ex experienced, including her inability to work with the GAL. The GAL decided to wait until the custody evaluation in November.

            If I was frustrated, you can imagine my ex. She maintained that I had bought and bribed the GAL, she even filed a complaint with the bar. The GAL called me for hours and complained about her. I was sympathetic. After all, I spent sixteen years married to her.

            The GAL billed a $3,000 retainer and subsequently billed about $5,500 in additional costs. In reality, considering the time he spent on the case, he could have justified another $10,000 to $15,000 dollars.

            Here are some of the areas dealt with:

I do not know where my children would be today but for the remarkable individual who served as their Guardian Ad Litem. It is possible they would be dead. When the news broke about my ex hiring the hit man, the GAL’s, now a district judge, secretary worried that he would be her second target. I agreed with that concern.

A series of articles came out in the Albuquerque Journal attacking the GAL system. My mother called and asked if I was writing the paper to defend our GAL. I told her that if they specifically attacked him I would defend him, but no one should have that kind of power over my children. Later, talking to the former GAL I was not surprised to hear him agree with my thoughts.

One common complaint about GALs is that they never go away, you end up dealing and paying for a GAL until the last child reaches eighteen. I imagine this is true if the parents never learn to adjust to the divorce.

We lost our GAL when the governor appointed him a district judge. At this point I fought against the appointment of another GAL for two reasons. First, my ex wife displayed considerable charm when she started a relationship. A new GAL would provide her an opportunity to start all over again with a new set of stories about my sins and the children’s sins.

Second, my ex’s behavior placed her out of the kids’ life for the foreseeable future, this was several months before her arrest, I did not really see the need for a GAL, especially when I was raising the children and paying (we were divorced).

Six months later I was in front of the judge with all of the ground we had gained crumbling underneath us. The judge was in the middle of ordering a third custody evaluation and I was protesting to the best of my ability. Given the choice between a third evaluation in a year with a new evaluator or something else, I suggested a limited scope GAL to address visitation. In the end, the judge decided to slow down and maintain the status quo: no third evaluation, no new GAL.

Lessons Learned from the GAL Process

Although, I went into the GAL process with the full knowledge that appointing a GAL led to reduction of my parental rights and responsibilities, this extreme is not necessary. Habitually, GALs take two forms, the statuary form or the broad power form. Why not identify the areas required and propose a limited scope GAL to deal with specific issues?

Most of the issues our GAL faced arose out of exceptions not norms. I did not like the child’s therapist, so I asked the GAL to fire her (he did). My ex did not like the church the kids and I attended so the GAL ordered us to attend there even when we thought of moving. The GAL ordered specified times for the children and I to talk during my wife’s visitation, she simply ignored the order.