By Colleen Honquest
Dealing with a custody case in Family Court? Is there a history of abuse/coercive control in your marriage? There are things that you should know…
Over past decades, the use of Guardians Ad Litem (GALs) in custody cases involving domestic violence has come under fire. Problems identified by the critics include violations of parents’ due process rights, GALs usurping the role of judges, and the failure of GALs to protect children from abusive fathers. In fact, some scholars now advocate the abolition of the GAL system, while others propose significant systemic reforms. (This is an excerpt from the Domestic Violence Legal Empowerment and Appeals Project (DV LEAP)2. “The Problematic Role of Guardians Ad Litem in Custody and Abuse Cases”. Grant No. 2011-TA-AX-K006)
If you are instructed or feel that you would like to ask for a Guardian Ad Litem (GAL) to help you with your parenting agreement in your divorce case, understand what you are agreeing to and what the process entails. Take the time to research what the process will look like and know the potential pitfalls in hiring a GAL to determine your child(ren)’s placement and parenting time. The following information is an example of one father’s experience with a GAL during his divorce. The GAL was appointed to aid in the determination of parental allocation in his children’s placement and the Joint Parenting Agreement.
Names have been changed:
Tom was a good father and did much of the parenting with his three children- ages 9, 12, and 16, all girls. He took them to their school and extracurricular activities and prepared their meals. He was “hands on” with his children during the marriage and he wanted to ensure that he remained in their lives and had at least half of the parenting time with his girls after he and his wife divorced. Kari, his wife, had been emotionally abusive throughout the majority of their 23-year marriage. Nothing Tom did was good enough and Kari was often both emotionally and even, at times, physically abusive. Tom and his girls were close, and he felt that nothing could ever change this. Tom and Kari’s marriage fell apart after Tom found that Kari had two affairs. Kari then admitted that she wanted to move away with her lover to Colorado and take their children with her. Kari filed for divorce and she and Tom entered into the family court system. Tom immediately realized that Kari’s difficult personality and her spite for Tom would cause her to start interfering with his parenting time with the girls.
Tom began experiencing issues trying to spend time with his girls. Kari started the alienation process of their girls from Tom by using calculated small steps. For example, Kari would have their older daughter interfere with Tom’s visitation time by instructing her to ask the younger daughters to go shopping with her when it was Tom’s time with the younger girls. Kari also scheduled activities and created excuses so that the girls would be busy and could not spend time with Tom. Feeling frustrated, Tom asked his lawyer how to remedy the situation. His lawyer told him about Guardian Ad Litems (GALs) and how these court professionals (usually lawyers) are used to review issues with children and parental allocation time in divorce. Tom’s attorney advised Tom that he should go ahead and hire a GAL and did not fully explain to Tom the pros and cons of the GAL system. Tom asked for a GAL thinking that he would be given an advocate who would objectively review their situation and understand that there were no reasons (criminal or abuse) that he should be given anything less than 50% of the parenting time with his children. However, what Tom was not told is that GALs have very little professional training to become a GAL for the court (other than already being a lawyer) and they typically have less than 7 hours of mental health training and often NO domestic abuse training. In High Conflict cases, this is a lethal combination as the spouse with the difficult personality gets right to work to convince the GAL that they are the superior parent and that the other parent is sub-optimal and often that they should be cut out of the child’s life completely. GALs with little or no idea what personality problems and disorders look and act like, are often immediately drawn in to the abusive spouse’s web of deceit. This does not even take into account that GALs have no idea what a victim of toxic stress and domestic abuse looks like and the behaviors that they often exhibit as they enter into the family court system. GALs and Judges often view the victims of abuse as crazy or overly emotional as these victims are desperate for someone to listen and to help them stay in their children’s lives. In Tom’s case, the GAL seemed to instantly bond with Tom’s wife, Kari, and by the time she interviewed Tom she was accusatory towards Tom and even defensive of Kari. The GAL came in and interviewed both him and his wife to determine placement and parenting time. Tom had never been convicted (or even accused) of domestic violence or any criminal behavior. He had been a fully engaged father who loved his children and was now divorcing his wife who, by the way, had had two affairs with other men. The GAL (a well-known local lawyer) proceeded to accuse him of abusive behavior towards his ex-wife and seemed to project onto him all the behaviors that Kari had done to him. After finding out about Kari’s affairs, Tom had become suspicious of Kari and tried, on two occasions, to record her phone conversations while in their home. The GAL found out about Tom trying to record Kari’s phone calls and ordered that Tom be forced to move out of the marital home immediately and to find an apartment. He could take only a few personal possessions. Later, this GAL also helped to write a Joint Parenting Agreement that completely stripped Tom of any real decision-making ability for his kids.
The Guardian Ad Litem (GAL) made time to call and interview all the people on Kari’s list of character witnesses. The GAL interviewed the children with Kari and not Tom. She called no one on Tom’s list of character witnesses and family members nor made any effort, when asked by Tom to do so, to follow up with them. Tom was in disbelief that the GAL seemed to believe all of Kari’s lies and her belief that Tom was the less capable parent. Her subsequent report and suggestion to the court was that Tom only have visitation one night per week for 2 hours and every other weekend with the children ending on Sunday evening at 6pm. Also, that Tom pay child support to the mother based on the increased parenting time with Mom. Kari and Tom both have similar incomes and there was never a question as to the ability of either parent to fulfill their roles. (A little background information here is needed. Kari had had several affairs during the marriage when Tom had gone overseas in order to make more money for the family. He had chosen to go to the Middle East as a contractor and, while there, he sent home approximately $10,000 per month to augment Kari’s earnings and help pay ahead on bills and on their mortgage.
Fast forward a few years, Tom comes back from the Middle East to find only $17,000 in savings left and the mortgage had not been paid off with all the extra money that Tom had been sending Kari for that purpose. The rest of the money that he had worked so hard to earn was now just gone. The missing money totaled over $800,000. In 2016, right after Tom returned home, Kari asked him for a divorce and announced that she was leaving him for another man and taking his children to Colorado. Tom later found out that Kari had been having an affair with a much older man and that a lot of the money had gone to pay for their trips and lavish gifts. Kari had planned to move with this him, and his children, to Colorado and to simply cut Tom out of the kids’ lives.
After the Guardian Ad Litem’s written recommendation to the court that Tom’s parenting time be drastically reduced and that he be forced to move out of their marital home, Tom tried to object to the decreased parenting time as he very much wanted to be a good father and remain active in his children’s lives. He recounted to me, that at the next meeting in court, the GAL and the two lawyers, in front of the judge, all pressured him to sign the new Joint Parenting Agreement (JPA) with the decreased parenting time. Tom began to cry and, with tears running down his face, asked for some rational as to why these changes were being made. He said that the two lawyers, the judge, and the GAL all stared blankly at him as he wept. He was told that if he did not sign, he would face a costly hearing that would cost tens of thousands of dollars and that he alone would pay the legal fees for both him and his wife! Tom now knows that it would have been less costly to delay the signing of the JPA and to better prepare for a trial where evidence of all the GALs biases and misdeeds may have been brought to light. As it was, Tom was now removed from the girls’ lives and Kari began to interfere with the little time that Tom was given to spend with the girls. The GAL bill totaled over $6,000 for just Tom’s half. Later in the case, the GAL even jumped in on the opposing attorney’s motion for fees and added on a request for $1,000 in additional fees for herself from Tom. The opposing attorney (and the GAL) claimed that Tom was slowing down the court process and demanded fees for their efforts at justice and efficiency. Tom was never made aware of why the GAL asked for the extra $1,000 except that she had heard that Kari’s lawyer was filing a motion for fees, so she jumped at the opportunity for extra money for herself. Up until that point, there had been no question as to whether Kari could pay the GAL or that the GAL process was “slowed down” in any way by Tom.
As it turned out, signing that document has cost Tom tens of thousands of dollars and, even more costly, precious time with his girls as they grow up. I always hear from my clients that attorneys use that phrase, “If you don’t sign this now, there will be a trial and that will cost you tens of thousands of dollars.” It’s as if signing a crappy parenting agreement is not going to cost even more, in the long run, in your ability to parent as an equal in your children’s lives? Not to mention the fact that by signing that Joint Parenting Agreement and agreeing to less than half of the parenting time, Tom was then liable to pay child support to a woman who made the same, if not more, in income. In addition, he handed over all parenting decision making to a woman who has begun to systematically remove him from the girls’ lives all together.
The Guardian Ad Litem who participated in Tom’s case is not an inexperienced Attorney/GAL. She is part of one of the most well-known law firms in DuPage County, IL. Her lack of mental health and domestic abuse training (and, apparent bias against fathers) cost Tom critical parenting time with his children. This GAL never bothered to investigate both sides and to fully determine who, in fact, was the more fit. This GAL also felt it was her right to strip one parent of his time with his children and thereby significantly alter the bonds that his girls have with him. What happened to due process? Tom was not given good guidance by his own attorney nor made aware of his rights as he worked with the GAL. Tom should have been instructed how to address issues of bias on the part of the GAL, early on in his case, rather than waiting for a court date and until it was too late.
The above story is an example of the tragic increase in family stress and trauma that can result at the hands of a Guardian Ad Litem who does not understand abuse and domestic violence. Custody placement issues are but the beginning of the problems that result from an uninformed GAL. GALs are dealing with families that have been traumatized and broken and, with no mental health training or background, they are ill-equipped to make issues affecting the lives of children and parents.
Here are 3 important things to remember before and after engaging with a GAL:
- Keep in mind, that a GAL has little to no mental health background or training or education in domestic abuse. If you are dealing with a difficult ex or you have a history of abuse in your marriage, you are best to look for a mental health professional to do your custody evaluation.
- Know your rights before you engage with a GAL. Discuss with your attorney exactly what it means to work with a GAL and what to expect in your interactions with them. Also, if you feel any bias on the part of the GAL, let your attorney know immediately.
- Know what kind of documentation, if any, is important to prepare and show the GAL. For example, any documents that show what you do as a parent. For example, doctors’ appointments, school and homework responsibilities, and extracurricular activities that you take your children to and from and your daily parenting routines.
Parents often look for emotional justice in the family court system. Often, victims of abusive behavior simply want someone to listen to them and understand what they have been through at the hands of the abuser. Unfortunately, it is more common for an abuse victim to suffer further trauma at the hands of a Guardian Ad Litem (and family court) as the GALs wade into their case and determine allocation of parenting time based on their “gut”. Because their “gut”, folks, is truly all most of these GALs have to make these huge, life-altering decisions. Prepare well and do your research on what it means to have a GAL come into your divorce case. Visit us at DivorceCoalition.com for more information and to chat with me or one of our professionals about your goals for your family. It is important to strategize and plan before you jump into the family court system. A Certified Divorce Coach is a good place to start.
Colleen Honquest, Divorce Mediator and Certified Divorce Coach
Founder, DivorceMD, LLC.
Colleen is not an attorney nor is the information in this article intended as legal advice. This information is a result of Colleen’s personal experience in a High Conflict Divorce in the family court system and from extensive research in to clients’ rights.