STANDARDS FOR GUARDIANS AD LITEM ARE NECESSARY

Because of an inordinate amount of mail and email requesting information about guardians ad litem and children involved in the divorce process, we provide to you the text of two of our columns dealing with these issues:

Question: When my husband made a claim for custody of our two children, ages seven and nine, the court appointed a "guardian ad litem" for the kids, without notice to my husband or me. That's when everything really went bonkers.

First, the guardian recommended that me, my husband, and both children be sent to mental health professionals for evaluation. The judge granted her request. Then the guardian sought permission to get my and my husband's medical records. The judge granted this request. The guardian even came to my home at 10:30 in the evening on two occasions to make what she referred to as a "surprise visit." Although both children were sleeping when she arrived, they both woke up when she went into their rooms to make sure they were really there. She wanted the children to undress so she could examine them "to make sure they weren't bruised". These Gestapo tactics are more than I can take. It looks to me that the guardian is running up her bill - which my husband and I have been ordered to pay.

It seems to me that something should be done about her, but my lawyer says there is no remedy, and that we should not make the guardian mad because her recommendations will carry a lot of weight with the judge. Isn't there anything I can do? Why did the judge appoint this person in the first place and why didn't he set some guidelines?

Answer: The behavior you describe seems quite odd and outside the norm; however, because we have received complaints from readers about guardians' behavior, we began to look for standards in the areas of appointment of and guidelines for guardians ad litem. Although we found very little help, it does appear that family court judges are appointing more guardians for the purpose of the litigation - called "guardians ad litem" - when the interests of children are put in issue. It also appears that many of these appointments are made 1) without notice to the parents and 2) with too little guidance and judicial direction - thus leaving the guardian to his or her own devices. Although each state may have its own rules, it appears that there are few consistent standards about when guardians should be appointed and the nature of their roles.

The American Academy of Matrimonial Lawyers, a non-profit organization, tackled these important issues head-on and, after an exhaustive study, published "Representing Children: Standards for Attorneys and Guardians ad Litem in Custody or Visitation Proceedings." Critically acclaimed in some states, these guidelines provide, among other things, that 1) courts should not routinely appoint attorneys or guardians ad litem for children in custody and visitation proceedings unless requested by both parents or authorized by the court because of special needs; 2) if appointed, the court should specify the duties of the guardian ad litem in writing; and 3) to be eligible for appointment as guardian ad litem, a person should be trained in the nuances of representing children. We believe this is the correct approach.

Bottom Line: If your guardian's behavior is as you describe, it appears to us that these issues should be presented to the court in an appropriate fashion by your lawyer. At a minimum, we believe that your lawyer should approach the court and ask that guidelines be established for this guardian.

Comment: After reading your Flying Solo column about guardians ad litem, I ordered the "Representing Children" book from the American Academy of Matrimonial Lawyers. Thank you for printing what many of us who have been through custody cases knew all along: The guardian ad litem system is very broken and needs fixing. I wish my lawyer and the family court judge who heard my case had seen your column and read the Academy's book before my case ended in disaster. And I hope that others take heed and get this information before it's too late.

Comment: During my divorce, my husband requested a guardian ad litem. The judge appointed a recent law school graduate who had no experience and no qualifications for the job. A young man aged 25, he acted like an advocate for my husband whom I was divorcing because of domestic violence. The guardian objected to almost every pleading my lawyer filed. And after a big custody fight, the court awarded my husband custody of our three daughters, ages 3, 5, and 7 based on the guardian's recommendations. To add insult to injury, the guardian's report recommended that my ex be able to take these three young girls anywhere in the United States without notice to me and without a hearing - which the judge rubber-stamped. When my ex-husband moved the children three states away, the guardian kept in contact with him and the children. The guardian even went to their new home by air to check on how the children were doing. Final guardian's bill: more than $15,000.

It seems that there are no restraints on these guardians' behavior, and a parent's constitutional rights seem to be ignored when a guardian is appointed. This is especially frightening when the opinion of the guardian overrides one's right to due process and fundamental fairness and is then rubber-stamped by a judge who is trying to move cases off his docket. I guess it's easier for the judges to cop out by letting a novice do their work for them.

Thanks for making the public, the lawyers, and most of all, the judges aware of this deficit in the system, and for letting all of us know that someone out there has recognized the problems and has taken steps toward solving them.

Message From The Authors: Since we wrote recently about deficiencies in the guardian ad litem process, we have received an inordinate amount of mail and email from members of the public, lawyers, and judges who overwhelmingly support change in the selection process and more control over the investigative and reporting process. Surprisingly, the vast majority of legal professionals did not know that several years ago, the American Academy of Matrimonial Lawyers, a non-profit organization of matrimonial lawyers based in Chicago, funded a committee to study these issues and to write suggested standards and guidelines.

"Representing Children: Standards for Attorneys and Guardians ad Litem in Custody or Visitation Proceedings," in our opinion, is a must for every litigant, lawyer, judge, and guardian who participates in custody and visitation litigation. Clear and to the point, these guidelines provide suggested standards in such areas as the appointment process, the delegation of duties and responsibilities, and training.

Jan Collins Stucker is an award-winning writer and editor. Jan Warner is a matrimonial, elder, and tax attorney. Both are based in Columbia, South Carolina. Flying Solo is distributed nationally by Knight Ridder Tribune News Service and can be found on the Internet at http://www.flyingsolo.com.

Please send your questions to P.O.Box 11704, Columbia, S.C. 29211 or send your questions by email to janwarner@flyingsolo.com.