Steve Thomas
Attorney at Law

Chapter 8

The Court’s Responsibility to Families

Most often, we think of courts in connection with criminal justice, but the frequency of broken families also makes family law a major area of their concern. Even if you manage to stay clear of the criminal justice system, if you get married and later want a divorce, or if you have children outside of marriage, the courts are almost certain to get involved, and judges must make decisions parents normally make for themselves. Often, they are not well suited to this task; after all, many of them are former criminal prosecutors.

The Sixth Circuit, which includes Piatt County, maintains a list of persons qualified to serve as a guardian ad litem (GAL) – someone who represents the interest of a minor child or disabled person in litigation – or mediator –  someone who meets with both parties in a family law case and helps them resolve their disputes. These people have a background in family law or family matters. Court rules require mediation or GAL involvement in an effort to save money to families so they can use it for their children instead of paying it to the court and to attorneys. These mechanisms also serve to keep the cases away from the judges, if possible.

Unfortunately, if a family law case is contentious enough, mediators and GALs do little good and often wind up costing the parties even more money. Most family law cases are not that contentious, and if a mediator cannot get the parties to agree, a GAL is appointed who conducts an investigation and makes a recommendation to the court that both parties can accept.

Too often, in my experience, mediation fails, and the GAL does not conduct a thorough or impartial investigation and makes a recommendation that goes against one party and that party is not willing to accept it. In such cases, in my opinion, the judge should litigate the matter the same as any other civil case, and not rely on the GAL recommendation. And yet, judges in those cases accept the GAL report into evidence and, by doing so, may take into account evidence that would not normally be admissible, such as hearsay evidence of neighbors or acquaintances.

One such case I handled came before one of the judges who was filling in for Judge Finson because of his conflict. Judge Finson could have heard this case, but one of the parties substituted him out, a right bestowed by state civil procedure law. Mediation failed, and a GAL was appointed. This case had also involved a domestic violence dispute, in which the parties’ three children all testified in the privacy of the judge’s chambers of abusive conduct by one of the parents (not my client). These children were older, in their early teens. Inexplicably, despite their testimony, the judge denied the order of protection they requested.

Meantime, in the family law case, the GAL (Suzanne Wells) had made recommendations in favor of giving primary caretaking duties to the parent who had been charged with abusive conduct. This recommendation relied on hearsay testimony from neighbors Ms. Wells had interviewed, including that one of the children was supposedly running wild about town with inadequate supervision by my client. At the hearing on custody, I objected to the admission of the GAL report because it contained this hearsay evidence, which was normally inadmissible because of its inherent unreliability. The judge overruled my objection without any real explanation.

The opposing attorney told me that I could subpoena that witness if I thought the GAL had misunderstood her, but this family had a very low income and my client could not afford that extra cost.  One reason GALs are appointed is to save costs, not to add to them. I had little choice but to take the matter to trial, however, because of the GAL’s recommendation, which in effect put the burden on me to prove her wrong.

The older child had not been running wild; she had been spending evenings away from home trying to raise extra money by babysitting. Ms. Wells’ GAL report was, in my view, naïve if not biased. I don’t think she understood that often in families like this, the child had to help with family finances. Yet, because of Ms. Wells’ recommendation, the burden was on my client and me to overcome that recommendation.

In the end, the parent who had been charged with abuse came to realize that his children did not want him to be their primary caretaker, and a settlement was reached.

I had a similar experience with a GAL recommendation that the judge was inclined to accept in Macon County. In that case, my client has sought restored parenting time but was denied, largely because of a GAL recommendation that I thought was based on an incomplete and unfair investigation. My client lost that case and the court saddled her with a share of the GAL fees, which were significant because of the action I took to challenge the GAL recommendation. Fortunately, my client’s finances were so poor that she was exempt from collection of the GAL fee judgment against her.

I have another reason for being opposed to the GAL system as it is applied in Piatt County. I have been on the list of qualified persons to serve as GAL for several years, and yet not one single time have I been appointed to serve as a GAL. That privilege seems to be reserved for a select few, for reasons I have never understood. I have been personally present in the courtroom when the judge need to appoint a GAL for a family law case, and that judge appointed someone else, someone not present in the courtroom. Let me emphasize that I have never been given even one chance to serve as a GAL in any case. I wrote a letter to this judge afterward, pointing out that I was on the approved list and that I had been present the day he appointed someone else to serve as GAL, and his response was, basically, that it was none of my business who he appointed as GAL, and I had no right to challenge his discretion. He may have been right in this, but that didn’t explain why I never received any GAL appointments.

If I were ever to serve as a judge, I would appoint mediators or GALs only after having some idea of how contentious the case was – the more contentious, the less likely I would appoint. Also, I would assume that every person on the approved mediator and GAL list is ready, willing and able to serve, and I would spread the workload around to all of those from Piatt County first, then to those from adjacent counties, I would make sure I give a chance to everyone on the list, and after seeing the quality of their work, make subsequent choices on merit.