On October 30, 2013, Attorney Sarah Oldham of the Academy of Matrimonial Lawyers provided her testimony before the Task Force responding to questions and proving once again that many legal professionals still don't get it.
Attorney Oldham was there to inform the task force regarding the role of GALs and AMCs in the Family Court System.
According to Oldham there are several reasons for assigning a GAL. The following are the most common:
1. Disagreement between parties with the establishment of a parenting plan;
2. Exigent circumstances
3. The presence of Emergency orders
4. Where the parties are pro se and there are no other attorneys.
GALs make recommendations in regard to custody. In doing so, Attorney Oldham pointed out that there are several factors considered in making decisions regarding child custody and they are located at the following link:
Of course, what they don't tell you is that when a GAL is assigned, parents lose their parental rights. The reason is that when the parents are unable to come to an agreement in regard to custody, the legal doctrine of parens patriae comes into play.
According to Wikipedia: Parens patriae is Latin for "parent of the nation." In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection. This means that you no longer have authority over your children, and the GAL has that authority instead.
However, from my observation, when attorneys in a case decide that there is a need for a GAL, or a judge comes to that conclusion and assigns a GAL using his power under the doctrine of parens patriae, parents are rarely, if ever, informed that the appointment of a GAL abrogates their authority as parents. If they were informed, I'd just bet that many parents would simply not agree to such an appointment. This is how Family Court deceives parents--by not informing them fully regarding what is actually happening during the proceedings in their cases.
What attorneys don't get is the parents object to being put in this position.
Continuing on with her discussion, Attorney Oldham provided information on the role of GAL's generally:
1) They act as the eyes and ears of the court, pursuing an investigation of what is going on with a particular divorcing couple and their children;
2) They also educate the couple regarding what goes on in court;
3) They provide mediation and the resolution of the minor details of co-parenting such as how a drop off is going to take place;
4) They represent the children, and get the parents to focus on the needs of children;
5. They represent the children during pre-trial hearings, and often during hearings and trials in regard to the children;
6. They provide neutral testimony in regard to the best interests of the children.
In conclusion, Attorney Oldham stated judges make the ultimate decisions, but GALs contribute their views.
However, as we all know, very few judges have the opportunity to see much more than the tip of the iceberg and so most frequently they are forced to defer to the GAL. What attorneys regularly tell litigants in family court is that whichever way the GAL goes in deciding who gets custody, that is exactly the way the judge will go. This renders meaningless statements to the effect that judges make the final decision.
What attorney's, judges, court personnel, even some members of this task force don't understand is that litigants in family court deeply resent this situation. It leaves almost total authority in the hands of a single, often poorly trained individual.
Attorney Oldham stated that the difference between a Guardian Ad Litem (GAL) versus an Attorney For the Minor Child (AMC) is that the GAL acts in the best interests of the child, whereas the AMC defends the Minor Child's legal rights. A GAL may testify in trial regarding the best interests of the child, however such a GAL is not allowed to submit motions or examine witnesses. In contrast, an AMC has the right to act as an attorney during a trial.
In response to the question of what kind of training do GALs have, Attorney Oldham responded that for the last two years there has been a 30 hour GAL training course available, but there is no final examination for this course. The training course covers such topics as:
1. Child Development;
2. Understanding psychological issues;
3. Understanding abuse.
When a task force member asked why there was no final examination, Attorney Dornfeld responded, "Many of the core qualities required in order to be a GAL are hard to test for. For example, how is it possible to test for empathy?"
What attorneys such as Attorney Dornfeld don't get is that litigants in family court aren't as stupid as all that. They are not going to believe that it isn't possible to test for empathy when many of us have already undergone extensive psychological evaluations that tested just those intangible, core qualities such as empathy in order to obtain custody of our own children!
Furthermore, we live in the real world, and are part of the real workforce. We are aware that, for instance, mental health professionals are required to test for such intangible qualities all the time and the fact that such intangibles exist as part of the job isn't an excuse not to test!
I am a teacher. At the end of each course I teach, I hand out a teacher evaluation to each student in my class which provides to the students an opportunity to grade me on a broad range of core qualities, including such intangible qualities as "enthusiasm for the subject matter."
Not only that, I am frequently observed by the Chairman of the Department and also School Administrators frequently come to observe my classes. Afterwards, I receive a written evaluation which measures a broad range of my teaching skills, and often provides me with encouragement to continue what I am doing in some areas of skill, while providing me with concrete suggestions for improvement in other areas. The idea that GALs, who are earning at a considerably higher rate than I am, should not be held similarly to account in regard to the quality of their work, I find laughable!
As a final remark regarding these points, Rep. Vargas stated that it isn't good when GALs and Judges act in a high handed, dictatorial manner. He also stated that accountability for GALs is important and stated that, "We all do better when we are being watched." He also said quite movingly, "Parents are extensions of the children. We must have empathy for the parents to do the job correctly."
The task force then turned its attention to how GALs are being appointed. Currently, with this course of instruction, there are now at least 1000 trained GALs listed as available.
Still, Judges continue to funnel all the work towards a small elite of highly expensive GALs. Why is that?
Minnie Gonzalez said what's the point of having such a list if parents aren't allowed to chose from it. Shouldn't parents have the opportunity to choose their GAL from a list of available professionals rather than be forced to accept the GAL a judge chooses for them?
Dornfeld stated, "If parents choose from a list, I can't believe a judge would refuse it."
Of course, litigants who have been abused can't help but ask how would any of them know such a list exists or that they have the freedom to choose unless informed of that right?
The reality is that judges continue to choose from among the GALs they know and feel comfortable with. While Dornfeld stated that this is because judges know those GALs have sufficient experience, I believe the real reason is because those judges know they can forge advanced agreements regarding the outcome of these cases with those GALs without having to worry they'll be caught at it.
Regarding any judges concern about the experience level of a GAL, if you always choose the same people, how are other GALs going to be able to get any experience and how will judges ever be exposed to fresh points of view?
While some members of the task force recognized that allowing parents to choose their own GALs from the list of 1000 available trained professionals would empower parents, Attorney Oldham pretty much stated that parents would be better empowered by doing what the attorneys in the case told them to do when it came to the appointment of the GAL. I would consider that a clarion call to "Embrace your slavery!" And again, some members of this task force, possibly the co-chairs, don't get that this attitude would be offensive to some litigants!
Attorney Sarah Oldham then continued on to blame the victims of corrupt family court practices for the damage GALs, AMCs and other corrupt attorneys inflict on them.
As Attorney Sarah Oldham described it, GAL's usually become involved in what she described as the small minority of high conflict cases. She describes them as disgruntled litigants who frequently don't bother to pay the "hardworking" GALs who are, in her view "underpaid."
Economically speaking, it is probably true that only a minority of litigants can be impacted by some of the financial abuse going on in family court. Not everyone can be extorted to the tune of thousands and thousands of dollars. Still, Attorney Oldham should know that the fact that a minority of litigants is impacted by financial exploitation in family court is irrelevant. We attend to the needs of minorities all the time which is why we celebrate the Jewish holidays and have affirmative action. The fact that family court attorneys rest on the shoulders of a minority in order to stay in business is not an excuse for continuing the practice.
Still the atmosphere of chaos that permeates family court and the fundamental disrespect for the law that exists there affects everyone. Does that make a lot of people angry? Yes, it does, as it should. Not everyone is as indifferent to the concepts of truth and justice as are family court attorneys.
Attorney Oldham doesn't get how frequently litigants are victimized by neglectful and negligent work among GALs. Further, her comments are simply insulting to the many victims of family court corruption. No litigant is going to pay a GAL for work undone, and if a GAL fails to file a report, or will not protect children who are at risk, they can't expect to be paid. Plus, many of us would like to know how $300 to $400 per hours translates into "underpaid"--only in the distorted world of the insular, greedy attorneys who target people they think have money.
Attorney Oldham also talked about how some parents go into their savings in order to pay for GALs, and again blames the victims by saying "They have many opportunities along the way and refuse to resolve issues." She attributes the behavior of couples in high conflict divorces to mental health issues, anger, irrationality, and the refusal to negotiate.
Naturally, Attorney Oldham doesn't mention how Attorneys threaten their clients if they don't pay, how they present family court litigants with impossible choices that often result in financial ruin and the loss of access to their children, or how they use their considerable skills in order to goad litigants into continuing the conflict. Then when people try to fight back, these attorneys call them crazy.
Attorney Oldham further stated that there is an imbalance in how litigants perceive what the Court System should be doing versus what the actual role of the Court System is. She stated, the System is not there to punish the other side for whatever wrong doing he or she did. The Court is not there to punish parents, but to put a parenting plan into place. She stated that high conflict litigants are upset when their Motions for Contempt are not heard, but even if they were resolved, such litigants are still not satisfied.
Yet there is clear indication that the Court will punish litigants both financially and also by putting people in jail, often for minor matters. For example, Rep. Minnie Gonzalez pulled out a legal binder full of documents, and stated she had a whole lot more of them back in her office and offered testimony that she is hearing hundreds of reports where kid's parents have been arrested for minor matters such as being five minutes late for drop off or pick up or for situations where they were tricked by being told that the child was not at the regular location for drop off or pick up and then appeared to be in violation of a court order when he or she failed to appear.
I also want to make it clear, litigants are not just dealing with parenting plans! For me, personally, I never saw a parenting plan until a year after my divorce was filed, so the idea that it is all about the parenting plan is absurd.
Not only that, I question the statement that litigants want the Court to punish their former spouses. What they want is for Family Court to hold their exes accountable for adhering to the agreements they entered into. They want judges to insist that their exes obey the automatic orders, and that judges enforce their own orders. Now no one is saying being inhumane, but litigants should be able to rely on the Courts holding the parties accountable and insisting that they obey the law. This is merely a reasonable expectation. It is not punishment.
Finishing up, Attorney Oldham reviewed the nature of what she termed the high conflict case. According to her, it usually begins with false accusations of domestic violence.
This kind of statement is shocking to hear from a prominent member of the legal profession because it particularly focuses on and stigmatizes women litigants. Essentially, Attorney Oldham is stating that women fake charges of domestic violence in order to get an advantage during a divorce. It is as if she wants to put the burden of all high conflict divorces on the shoulders of women. This is why legal professionals just don't get it. They don't understand that when women stand up for their rights, they should not be condemned for doing so.
Attorney Oldham also stated that in high conflict divorce usually, one of the parties ends up as a pro se party, and files an extraordinarily high number of motions to the point where they have to ask permission before they are allowed to file any further.
Of course, what Attorney Oldham doesn't mention are the multiple violations of the law the other side committed, the multiple violations of due process that take place in court, and the State Statutes and Case law that the trial court violated in the course of denying that self represented litigant his or her rights.
Among the violations of due process is the fact that the majority of judges ignore the motions of self represented parties and fail to rule on them. In addition, family court clerks often do not post the motions of self represented parties for a hearing, or else they will "lose" the motions. This leads self represented parties to file additional motions, and then because earlier motions weren't heard and ruled on, more complications ensue. Then self represented parties end up filing more motions to address the new issues that have cropped up.
A self represented party could simply not file, but then such a party will find that the judge will sanction them for not filing, so it is a catch-22 situation. Of course, everyone in court--judges, clerks, court reporters, attorneys--know exactly what is going on, but they pretend to be appalled at multiple filings nonetheless. It is all a big game. This is a very serious concern because the way family court deliberately obstructs self represented parties and treats them badly in contrast to represented parties constitutes a serious constitutional issue, one that will, ultimately, need to be addressed by the federal courts.
Attorney Oldham is correct that there are often two or three attorneys involved in high conflict cases. That is because initially, most legally abused litigants will try to hire attorneys who will defend their rights, only to find that they are all colluding together and have agreed in advance to deny the litigant his or her rights. Again, Attorneys don't get that this is not OK.
The bottom line, according to Attorney Oldham, is that high conflict cases take up a disproportionate amount of court resources, and the parties end up engaging in an extended fight that is damaging to the children.
Of course, while Attorney Oldham acts like this is a problem, the reality is that without such cases, the judicial branch would be unable to justify its high budget demands, matrimonial attorneys wouldn't be raking in these exorbitant fees, and they'd all be put out of business. This is why the policies of family court and the current practices of the vast majority of family law attorneys are geared towards creating these high conflict cases as frequently as possible, children be damned.
At this point, Ms. Jennifer Verraneault pointed out that one of the concerns Attorney Sarah Oldham had was that parents should not put the children in the middle of the conflict. Yet as soon as GALs are appointed and then come to children and ask them invasive questions in regard to their parents, and hold those parents to a higher standard of parenting than ordinary, those children are automatically put in the middle.
Attorney Sarah Oldham responded that the Court only holds them to a minimum standard!
But we all know that isn't true. Litigants in family court find themselves demonized when it comes to their parenting for even the most trivial matters, such as perhaps being five minutes late for pickup, as Rep. Gonzalez pointed out. They also find themselves demonized for matters that are entirely imaginary and that the GAL or the opposing side completely invented out of the thin air, and there is nothing a litigant can do to defend him or herself because the Court does not require the GAL or the accusing party to provide concrete evidence.
Attorney Oldham also talked about the difficulty of working with attorneys who have a machine in place and will not compromise under any circumstances. These attorneys have a "take no prisoners" approach and everyone in Court knows who these attorneys are. Oldham felt that no judge could intervene and stop what they are doing because such attorneys still operate within the confines of the law.
But stop right here. Litigants who have spent time in family court aren't that stupid, although many attorneys just don't get that. If judges know which attorneys are deliberately pushing a litigious agenda, they are quite capable of telling those attorneys to cut it out or threaten them the way such judges are happy to threaten self represented parties. If they choose not to do so, it is because they have special relationships with those litigious attorneys and let them get away with it.
Then such judges have the nerve to criticize litigants who choose to defend themselves in the face of such litigious attorneys and call them "high conflict", etc. The real high conflict arises from these litigious attorneys, and there are a lot of them raking in money at the expense of innocent litigants and their children. Family Court Judges can't control their own, i.e. fellow attorneys, but they will seek to control litigants by assigning GALs to threaten and intimidate them!
For example, Ms. Verraneault read part of a transcript where a litigant begged the Court not to assign a GAL to the case because the couple had already spent over $25,000 on a previous GAL and they simply did not have the money. It appeared that the judge was saying that if the couple did not agree immediately, they would be punished by the imposition of the GAL whether they wanted it or not. She stated that she thought it was wrong that the Court should use the appointment of a GAL as a threat to hold over the heads of litigants.
Ms. Verraneault also pointed out the egregious expenses associated with litigation with these extra Court personnel who are commanding extraordinarily high salaries from the parents while not necessarily contributing to the resolution of a case. For example, she said if you have the Attorney for the Plaintiff at $300 per hour, the Attorney for the Defendant at $300 per hour, the GAL at $300 per hour and the AMC at $300 per hour, it literally costs $1,200 per hour for a hearing in court. That is an untenable and unfair expense for the families involved.
Some of the abuse occurs because the GAL's role still has not been defined clearly enough in the State of Connecticut. Specifically, task force member Judge Weissmuller pointed out that there are no specific criteria defining the position of a GAL in the State of Connecticut. Case law that currently exists is so broad that it is very difficult to challenge GAL immunity, and thus grieving a bad GAL is an uphill battle.
He also recommended as a solution that there should be specific checklists in regard to the tasks a GAL is expected to fulfill, and also he recommended the approach of family courts in Washington State that require a GAL to give the Court the following information:
1. evidence that the GAL has practiced family law for five years;
2. completion of a multiday course of instruction;
3. a criminal background check;
4. curriculum vitae;
5. designation of specific tasks GAL will carry out;
6. the hourly rate for that GAL;
7. the option for a judge to reduce the GAL fees if he or she sees fit, along with the option for the GAL to leave the case under those circumstances.
Judge Weissmuller also pointed out that in Civil court if two self represented parties were engaging in a badly fought case, the judge would not then order a GAL. It is only in family court that a GAL gets assigned. A GAL should not be assigned simply because the parties are disagreeing, but only if the parties are not parenting well. Litigants are not required to agree, and the idea that a GAL is assigned to strong arm the litigants into a agreement would be wrong.
I will be frank, it is sometimes difficult to sit in the audience while these hearings take place. It is difficult to sit and listen to corrupt attorneys such as Attorney Sarah Oldham come in, try to cover up for the fundamental abuses going on in family court while making statements which refuse to acknowledge that we have a crisis in our family courts and that litigants are outraged at how they have been treated and will not tolerate this any longer.
Do such attorneys think that we are just going to roll over and play dead? Do they think we intend to continue putting up with the kinds of lies and nonsense that we have been enduring in family court? It is as if these attorneys think that they can continue to get away with the kind of nonsense they've been pulling, and that they can bully the State Legislature the same way they have bullied everyone else.
The news is, Connecticut litigants have had enough and we are going to insist upon change, and we are going to insist upon reforms whether these legal professionals like it or not.
