It’s either a hit piece or a call-to-action, depending on your point of view. Such are the vastly disparate reactions to Susan Du’s article in this week’s City Pages on the Minnesota Guardian ad Litem System.

The article includes a cast of lying parents, “cutthroat” lawyers, and corrupt guardians ad litem, to tell the story of children “lost in the madness” of Minnesota’s family courts.  And, in arguing for change, the article focuses all the ire and pain of thousands of divorced and separated families on a single, Hennepin County Guardian ad Litem.

A Brief Disclaimer

I have to start by owning my own biases.  I’m a divorce lawyer.  According to the piece, I’m one of the same “cutthroat” professionals “tell[ing] stories so wildly incongruous that they seem to be describing different families.”

While I suspect that description would surprise most of my clients and colleagues, I accept that true-believers will have ample opportunity to write my views off as entirely self-serving. The most generous critique will be that I’m part of the same, broken system.  The more cynical will bitingly add that I profit from broken families.

So maybe my opinion doesn’t count for a whole lot here.

Still. I spend somewhere between 10 and 12 hours most days (and sometimes a lot more) working on exactly these issues. Most weekends find me reviewing case law, or reading law review articles on how courts and the legal profession can create better outcomes for families. Heck, this whole blog is devoted to better understanding the law’s effect on family life.

So biased though I may be, I also am operating with a larger sample size than most in discussing the in’s and out’s of our family court system. And what’s a soapbox for after all?

Blame the Process. Not the Person.

Which brings me back to those biases I mentioned.

I take a somewhat Hippocratic approach to my work with families: first, do no harm.

And my interactions with other professionals in my line of work has left me convinced that this is a fairly widely shared sentiment. I have yet to meet a lawyer, judge, therapist, mediator, or guardian who comes to work intent on hurting children.  Not one.

Do well-intentioned people make mistakes? Of course.  Could our family court system be improved? Absolutely.

But malice? I just haven’t see it.

Even when it comes to those professionals with whom I vehemently disagree, I don’t view our differences as animated by ill-will, but rather by fundamentally different beliefs as to what best serves children and families.

With that said, I also understand why the parents featured in Du’s article feel victimized by a system that can be complicated, expensive, and insensitive to the needs of their children. It’s not a perfect system. Sometimes it’s not even a good system. We can (and really should) do better.

But while the families in Du’s story are inclined to lay their troubles at the foot of one guardian, I’m inclined to see this as more of a systemic issue–a reason to re-evaluate how we try to reach the “truth” in family court and improve outcomes for children and families.

You Couldn’t Pay Me Enough to be a Guardian

It’s hardly an enviable role.  The Court–which can’t do any independent factual investigation of its own–looks to you as its eyes and ears, the only neutral party without an agenda to advance. But to the parents involved you’re, at best, an interloper, an unwelcome presence in a family already going through hell.  Everyone is struggling, and everyone has a different theory as to why.

Add to that, 30 or 40 or 50 other families, all with unique problems but similarly high levels of need, and you’re expected to be a voice of Solomonic wisdom for every one of them.

And, of course, the stakes are high, so you can’t afford to make mistakes. Because if you do children could get hurt.

But mistakes happen anyway.

A System in Need of Change

And that’s why guardians are only one part of the process, albeit an important part.

Guardians aren’t going to get it right in every case, and our system shouldn’t expect them to. At least not so long as erring is still human.

Which is why parents, judges, and lawyers (where there are lawyers) need to be able to critically evaluate a guardian’s recommendations. We can’t expect a mistake-free guardian system, but we can help ensure that where mistakes are made, they’re caught and rectified early.

Judge Kevin Burke, who was interviewed for the article, makes much the same point (albeit putting the onus on judges in particular):

I don’t want to come across as a shill for guardians, but I think in the end they get more criticism that is undeserved and [judges] don’t get as much criticism that would be deserved…The worst scenario is judges who rubber-stamp whatever the guardian recommends, because you as a judge are abdicating your responsibility to make that decision.

And I’m inclined to agree. With a caveat.

Because even as we rightfully have high expectations of judges (as Judge Burke notes), we should also recognize that the system can do more to help parents, attorneys and judges get the right answer even when a guardian in a particular case may have (with the best of intentions) gotten the wrong one.

And in thinking of improvements to the Guardian system, there are at least three changes that could make a meaningful and immediate difference.

 1. Greater Transparency

No small part of helping to make sure we “get it right” when it comes to kids, is making sure everyone is operating with the same information.

In most custody cases (and civil litigation generally) our rules provide procedures for obtaining information (discovery) from the other parent as well as third parties.

But try getting access to a guardian’s file, and you’ll find the usual rules of permissive disclosure don’t apply with the same force.   Under the rules of guardian procedure, a guardian is responsible for keeping information confidential, and there’s case law to suggest that information may be withheld (even from the parents and attorneys) on the basis solely of “the children’s best interest.” See In re the Marriage of Muellerleile and Muellerleile, No. C9-97-1141 (Minn. Ct. App. Dec. 2, 1997)

This problem is only made more difficult where memories of collateral sources can be foggy about what this-or-that school official or therapist really reported.

As a result, guardian opinions can be difficult to evaluate and (where appropriate) rebut, even for attorneys.

For self-represented parties it may be almost impossible.

But it doesn’t have to be.  Our guardian rules could be amended to require guardians to automatically turn over all information in their file upon request (and without additional charge) as well as to keep careful written records of conversations that must be made available to the parties and counsel.

Given the power of the understandable weight guardian recommendations carry, I don’t think this would be asking too much, particularly to ensure the integrity of the process through greater transparency.

2. Better Role Differentiation

You might not know it, but guardians aren’t mediators or custody evaluators or parenting consultants or parenting time expeditors or a decision-maker of any kind.

Parents make decisions (together).  When they can’t, judges make decisions.

Guardians make recommendations. That’s it.  It’s right there in the rules.

But with few resources available to low and middle income families, guardians are often asked to wear a variety of hats. Lines get blurred. Roles get confused. The results are seldom positive.

Every person in the family court process has a role to play, and it’s important that we understand and respect the limits of each role.  Guardians are not decision makers, and their recommendations should be evaluated just as carefully as requests by a parent.  That they sometimes are not is a problem. But a fixable problem. See point 1.

3. Strict Adherence to Procedural Rules

The article mentions another issue that shouldn’t be overlooked: receiving a guardian report the day of the hearing.

While this  may seem like one of the more minor sins, timely notice of a guardian’s recommendations is crucial to a fair system.

Most family court matters are decided on written motions (affidavits, memos, etc., as well as legal arguments from the lawyer or self-represented party).  The party who is asking for relief has to file his/her papers 14 days before the motion, any new issues the responding party wants to raise are due 10 days before, and all responsive documents (to a 14 or 10-day submission) are due 5 days before.

These are tight deadlines.

So if recommendations aren’t provided until  day of the hearing (rather than 10 days before as required by law), parents have almost no ability to critically evaluate those recommendations and provide context.  That’s a problem. See points 1 and 2.

Time for a Change.

The guardian program isn’t perfect.  The family law system in general isn’t perfect.  But change is not only possible, it’s achievable. It won’t come quickly, and it won’t come easily.  But it also won’t come from treating one guardian as the problem.

Good intentions certainly aren’t enough, but they’re a good place to start. They’re something we can build on.

It’s time to start building.

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