A bill that reforms many elements of the state’s guardian ad litem system now awaits the signature of Gov. Dannel Malloy. If he signs it, no one will be particularly happy.
In late April, the General Assembly approved several measures that will give divorcing parents more say in choosing the person who will represent the interests of their children in custody cases, more advance knowledge of the fees parents will pay and a more direct method for challenging the conduct of a GAL.
But reform advocates believe the measures don’t go far enough in protecting their rights. In contrast, members of the legal community say the bill goes too far and will cause attorneys to reconsider whether they want to do GAL work.
From the sound of it, the family bar might even be more unhappy after the next legislative session, as key lawmakers called this year’s action the first step in a larger overhaul of Connecticut’s family court system.
“This [legislation] in the minds of some people will be viewed as a minor step or a small step,” said Sen. Eric Coleman, a cochairman of the Judiciary Committee. “But considering all of the parties that came together to hammer out these issues, I believe it is a significant step forward.”
Parental advocates claimed only a partial victory. Peter Szymonik, one of the more vocal advocates, said much more needs to be done to address “out-of-control” legal fees for pro se parties. An estimated 80 percent of the family law cases in Connecticut include at least one self-represented party.
“All in all, we took heart at that fact that the bill passed unanimously, and that every legislator who spoke about this said there is more to come,” Szymonik said. “As a next step, we would like to see parental rights clearly defined and protected, guardians ad litem to be mandated reporters [of child abuse], and their services engaged on flat and fixed rates.”
Some family law practitioners predicted the law will make highly contentious child custody proceedings even more complex. As an example, they cite a provision requiring them to document “a laundry list” of factors they have considered in making recommendations to the court about a child’s best interests. These include mental health records, domestic violence complaints and cultural factors.
Factoring in these elements was something “any competent guardian ad litem was already doing,” said Susan Asselin-Connelly, an attorney and GAL in New London. “By requiring these things [to be documented], well, that’s going to create more work.”
The legislative votes were the culmination of a long-simmering battle by unhappy parents, some of whom claimed they had been driven to near financial ruin when GAL fees in their custody cases had run into the tens of thousands of dollars. The parents showed up en masse before a task force examining family court issues late last year. They similarly made their presence felt at recent hearings of the Judiciary Committee.
The parents complained that judges repeatedly chose from the same small pool of GALs, promoting a too-cozy relationship between the lawyers and the courts. They said GALs often alienated children against the parents and dragged out legal proceedings to boost attorney fees. They also noted it was extremely difficult to bring a formal complaint against a GAL’s conduct.
GALs in Connecticut must undergo six weeks of training. Most, but not all, of the 1,000 people on the state’s list are lawyers. The legal community has come to their defense, saying GALs do an excellent job of protecting the rights of children during high-tension custody proceedings.
Under the approved bill, parties would be allowed to select a guardian ad litem from a list of 15 GALs who reside in whichever judicial district the custody case is being heard. The law would require the presiding judge to spell out in advance the scope of a guardian ad litem’s work, deadlines for its completion and fees to be paid. Court administrators would be asked to create a sliding scale of GAL fees, based on the income of the parties.
The Judicial Branch would also be required to create a process allowing parties to petition the court for removal of an appointed guardian ad litem. If Malloy signs the measure, the Judicial Branch will organize a committee this summer whose members will propose rule changes to cover all aspects of the law.
Parties have always been able to petition the court for removal of a guardian ad litem. But case law has established a high burden for removal, including proof the GAL was somehow impeding the resolution of the case. “It’s been rare these were granted, but the new law would remove the requirements and rationale,” Asselin-Connelly said. “Now, someone can seek removal because I don’t like what the GAL said.”
Asselin-Connelly said that provision alone could lead to an increase in litigation. “If a guardian ad litem is doing their job, they are going to make recommendations that are going to make one of the parents cranky,” she said. “But by giving parents an ability to more easily remove a GAL, I think that will bring more people into court for longer, drawn-out proceedings.”
Justine Rakich-Kelly, a lawyer who is the director of the nonprofit Children’s Family Law Center, sees both pros and cons in the reform bill. “We support standing for parents to make a motion to remove a GAL,” she said while adding this caveat: “I am concerned about that process further clogging up an already beleaguered court system and am hopeful that [the Judicial Branch] will be able to create a fair process that is expedient.”
She’s further concerned about the provision allowing parents to choose from a list of 15 GALs provide by the court. “This gives the parents the illusion of control, but if they are unfamiliar with the work of those on the list, they are choosing blindly.”
Lawmakers indicated they were considering even more aggressive steps. State Rep. Minnie Gonzalez, a Hartford Democrat, had proposed requiring all guardians would have to report any signs of abuse or neglect they observe, similar to mandates imposed on social workers and teachers. She also sought to remove the judicial immunity the current law grants to guardians, which would allow parents to file civil lawsuits making malpractice claims. Both of those provisions, along with a proposal to cap fees for any case at $3,000, were not part of the final bill.
Even before the Legislature voted, a handful of attorneys announced they were no longer taking clients for GAL work. If the bill becomes law, even more will opt out, some lawyers said.
Sarah Oldham, a Westport family law practitioner, said many questions remain about the implementation of the new law. For example, she said she has “no idea how the court is going to make use of a sliding [fee] scale. It’s not defined.”
One thing she’s sure of is the changes will make life more difficult for lawyers. “GALs do a wonderful job helping to resolve a huge number of cases,” Oldham said. “But if they’re going to be under attack by every disgruntled parent, they are not going to be able to do the work.”•