Category Archives: GAL Standards

Family Court Abuse, GAL Standards

What Really Motivates Lawyers In Missouri’s GAL System? Money!

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Shortly after I posted my commentary on the newly revised Missouri guardian ad litem standards, I was contacted by Missouri Lawyer’s Media/Missouri Lawyer’s Weekly for comment. Ms. Allison Retka was kind enough to forward the complete article for your reading pleasure since the site is a member’s only publication and closed to the public.

Under new policy, Guardians ad litem must also be attorneys; GAL training hours reduced

by Allison Retka

Published: September 27th, 2011

A revamped set of standards for guardians ad litem took effect on Sept. 1 throughout Missouri.

Under the new standards, guardians ad litem must possess a law license. The standards also cut the initial training requirement for GALs from 12 to eight hours, and reduced their continuing legal education requirements from six hours to three.

“There was a lot of people who didn’t want the mandatory training because it was difficult for some people, in particular those in rural areas, to get the training,” said Martina Peterson, a family court commissioner in the Jackson County Circuit Court who co-chaired the committee that changed the standards.

“Financially and time-wise, it was difficult for them to be able to do a significant amount of training,” she said.

Guardians ad litem represent the interests of children in various types of court cases, from divorces, adoptions and juvenile criminal proceedings to child abuse and neglect cases.

The separate state statutes governing those areas of law require GALs to file motions, subpoena witnesses and appeal rulings, Peterson said. The law requires them, in effect, to practice law, she said, so GAL standards needed to reflect that.

Peterson said the committee considering the standards received little feedback from family court litigants. But one parent took to the Web earlier this month to protest elements of the new GAL standards.

Lisa Payne-Naeger, a mother in Lake Saint Louis, blogged about the new standards on her site, Guardian Ad Litem Reform. Payne-Naeger endured a contentious divorce and custody dispute in 2008 in St. Charles County Circuit Court. She said she worried that the attorney requirement will carry along with it the hefty attorney’s fees that parents must pay to the GAL assigned to their cases.

“It’s a money-grab thing,” Payne-Naeger said. “I do not believe the GAL is there to represent the children. Most of the time the GAL advocates for one or the other parent.”  She said in her divorce case, she and her ex-husband paid their guardian ad litem, Benicia Livorsi, $80,000 in GAL fees. Livorsi didn’t immediately return a call seeking comment.

Peterson’s said Payne-Naeger’s costly GAL experience is an extraordinary case.

“You can’t let extraordinary cases or situations guide what happens across the state,” Peterson said. “Most guardians ad litem make very little money at all doing this type of work.”

Belinda S. Elliston, another committee member and guardian ad litem in Jasper County, said the attorney requirement may affect some circuits that relied heavily on Missouri’s network of court-appointed special advocates (CASA) for GAL work. But CASA organizations maintain staff attorneys to represent the interest of children. Beth Dessem, the executive director of Missouri’s CASA Association, wasn’t immediately available to comment.

Elliston, a Lamar attorney who also works as legal counsel for the Jasper County Juvenile Office, said she appreciated the reduction in training hours. Attorneys can now avoid two days of initial training hours, which require an overnight stay and two days away from their law offices.

“When I’m out of my office, I’m not making money,” Elliston said. “And I can’t pay my bills if I’m not earning my income and having billable hours.”

The new regulations are “more reflective of what would be a practical expectation of folks serving as guardians ad litem,” Elliston said. “It provides a better service for the children in these cases, which is the ultimate goal.”

Read more bout the new standards. (PDF)

 After reading the article, it was, again abundantly clear to me, the legal system is full of people who don’t give a flying fig about the people/children they represent, it’s all about the money, and they don’t really care about how they present themselves. Perhaps the reason why they behave this way is because the judicial branch of the government is so used to operating without oversight and consequence for bad actions, they can react with flip remarks without repercussion. And they know it.
The new standards state: Guardian ad litem practice is unique and complex and, as such, requires specialized education, training, and experience.Really? Are they kidding? It must be so unique and complex that it should not require attorneys to be so burdened with time consuming efforts to educate themselves as to those uniquenesses and complexities. Right?
Why are attorneys complaining about generating income when almost all of the people they are supposed to be acting on behalf of are having their life savings drained to have their families and interests represented in courts? You continually hear, especially in cases of divorce, that no one wins, except the attorneys. When most people enter into court actions, they almost always leave with a lot less money, often times their life savings are drained, in attempts to fight for the rights of their children and families. Are we really to believe the words of Martina Peterson when she describes that it was too “hard” to get the training and too burdensome, when the actions of GALs change lives, forever? I think they should be a little more sensitive to the people they are supposed to serve before they duck their training responsibilities.
To add emphasis to the fact that the judiciary had little concern for their obligations relating to guardian ad litem service, one only needs to read the legislation passed (SB237) in 2011 to mandate updating the standards. In fact, there was no direction in SB237 to implement improving the representation of children and families.
… standards for representation by guardians ad litem shall be updated and adopted statewide and each circuit shall devise a plan for implementation which takes into account the individual needs of their circuit as well as the negative impact that excessive caseload have upon effectiveness of counsel.
If you read my previous post, you would know that the biggest change to the standards requires all GALs to be licensed attorneys even though it is not required in the statutes. Convenient, again, especially in family courts where GALs stand to make more money on these cases. And is the judiciary setting the stage to eliminate the rights of citizens to represent themselves in court? Will we see statutes change in the future to line up with the standards? The last time I checked, citizens were allowed to represent themselves in courts, if they wanted to do so. Is it really a good idea for the courts to mandate away the rights of lay people act on their own behalf in court? Is this the first step to get us there?
Just a note to the lawyers: It’s not all about you! CASA volunteers have had access to attorneys, to fill in the gaps in their cases, should the need arise to file motions, etc. I would venture to say that there is a bit more to GAL work than filing legal briefs and cross examination. And perhaps, since the day has long past for laypeople to feel comfortable, and/or welcome, to represent themselves in court, if filing motions and asking questions in cross examination is so complex, its long past time for an overhaul of the legal system. Many, many people who have been dragged through the court system will tell you they most likely didn’t get anything close to the representation they paid an overpriced attorney for.
And finally, my GAL experience was not extraordinary. There are stories, across the nation, where people have been taken to the cleaners and misrepresented by GALs and family court representatives. I continually speak to and work with people, from across the country, who have been devastated by the corrupt family court system.
10/11/11 After Missouri Lawyers Weekly made contact with the GAL in question in their article, they printed the following correction:

Correction

A Sept. 27 article about recent changes to statewide guardian ad litem standards included a quote from Lisa Payne-Naeger that said St. Charles attorney Benicia Baker-Livorsi received $80,000 in GAL fees in a case. Livorsi received less than $10,000 in fees in a contentious two-year divorce case between Payne-Naeger and Jeffrey Naeger. We regret the error.

I will follow up on this issue and keep you posted.

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Is Missouri’s Guardian Ad Litem System Another Vehicle Of Overreach Into The Lives Of Private Citizens?

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Late on Monday, August 29, 2011, the Supreme Court of Missouri finally released its updated standards for guardians ad litem. In 1996, the court was mandated by the legislature to revise and update Guardian Ad Litem standards and have an implementation plan in place by July of 2011. In 2009, the court issued a press release seeking comments and recommendations, from the public, regarding revisions the standards, and in the 2010/2011 legislative session a bill was introduced in the senate, SB237, which finalized the process. Members of the revision committee included judges, attorneys and CASA volunteer administrators. While many attempts were made by citizens to contribute to the revision process, no members of the public were allowed to participate. Why?

Perhaps a judicial/legal system, that polices itself, didn’t want interference from outside the brotherhood. The first and most glaring revision to the new standards is stated in the first paragraph.

… the court shall only appoint a lawyer licensed by the Supreme Court who has completed the training required by these standards.

The court may designate a court appointed special advocate volunteer to assist in the performance of the guardian ad litem duties for the court as provided by law.

No where in Missouri Statutes 452.423 or 210.160 does it state that only a licensed attorney may represent a child in a proceeding as a guardian ad litem. It does allow for the guardian to be the legal representative, but never requires the representative to be licensed by the courts. Statute 210.830 allows for a child to be represented by a next friend and Statutes 453.025 and 211.462 allow for a legal advocate. Again, nothing about licensing by the courts being a requirement. The previous standards allowed for court appointed special advocates to also act as guardians ad litem when appointed by a judge. The new standards do not appear to reflect the statute guidelines. Laypeople who are navigating the court system, in Missouri, will rightfully be misinformed by this discrepancy if they do not get factual information from their attorneys or do their own research beyond reading the new standards.

How does this affect the Court Appointed Special Advocate (CASA) program? In reading through the statutes, there appears to be no differentiation between situations in which an attorney or a CASA volunteer may be appointed as a guardian ad litem. However, in a conversation with Missouri’s CASA Executive Director, Beth Dessem, she states CASA volunteers, in Missouri, only perform guardian ad litem duties in cases of neglect or abuse and not in family courts, unless abuse or neglect is present in those cases. It begs the question, how can a CASA volunteer perform as a GAL, in cases of divorce or abuse and neglect, if they are not licensed attorneys as stated in the new standard? Again, in the new standards document, the term “lawyer” is used throughout. It would appear that the court/legal system has developed its own criteria, outside the statutes, for assigning guardian ad litem duties. The CASA program is largely funded, in one form or another, by tax-payer dollars, either by state or local municipality funding. In family court cases, however, where guardians ad litem are assigned to various divorce proceedings, attorneys are awarded these cases and are paid by the litigants. It is not uncommon, as cases are often escalated and drawn out for long periods of time, for attorneys acting as GALs to make six figures from a single case. Could the legal network be stacking the deck, in favor of attorneys, to reap the most financial gain from the system?

Standard 5.0 outlines access between the GAL and the child. Throughout, the standard guidelines are given which summarize various opportunities for the GAL and child to communicate and see each other. However, comments for this section clearly suggest that the GAL should promote and maintain a “relationship” with the child. Is it appropriate for government entities to enter the family sphere to create relationships with clients? While it is reasonable to expect that GALs need to have access to clients and information regarding their client’s care and lifestyle, in order to provide the court with recommendations as to their best interests in neglect and abuse cases, is it reasonable to promote “relationships” with children, who may form emotional bonds, with someone who works for the court system? Are family courts overstepping their reach, into the family, by inferring more authority and closer “relationships” with clients, especially since not all cases in which GALs are assigned, involve neglect or abuse?

Has the Family Court turned into BIG BROTHER? Standard 7.0 addresses confidentiality and privilege. It outlines that information received during a case falls under the rules for professional conduct according to the Missouri Courts. The comment for this section, however, have lengthy explanations for various aspects, of which parents should be aware. It allows for GALs to receive information for every aspect of the child and family dynamic; schooling, psychological, medical, substance abuse, etc. Not necessarily unreasonable information to have when investigating neglect or abuse, but in cases of divorce, where GALs can be assigned for custody battles, they are also entitled to this information, even when abuse is not found or alleged. Problems, here, may arise with transparency. The comments state:

Only the court has the authority to rule on any request concerning the handling or disposition of the file and order its release or early destruction to rule on any request concerning the handling or disposition of the file. The guardian should not provide the file to anyone, including the child, without the consent of the court.

Does this also mean parents may not have access to the file without court approval? Will obtaining the file require costly attorney fees to draw up written requests to the court? Would parents have the ability to challenge any information entered into the file they feel is fallacious? Remember, not all cases in which GALs are assigned encompass neglect and abuse. One might even question: Are GALs being over used by the courts? Should parents have access to files generated by the court system? What recourse, to dispute false allegations, do citizens have?

Comments for standard 14.0 state that GAL practice is unique, complex and requires special education, training and experience. Perhaps that is why the Supreme Court decreased the required initial training from 12 hours to 8 hours, and subsequent continuing education from 6 hours to 3 hours annually. Beth Dessem, Missouri’s CASA Director states that CASA volunteers receive 30 hours of training to act as guardians ad litem.

The process of revising the GAL standards has been one of secrecy. After the Supreme Court issued a press release for public input, they shut the process down, from any inclusion of public opinion or oversight. Requests to get copies of rough drafts or attend meetings were denied or met with stonewalling. As the legislature took up the issue of approving the standards in the 2010/2011 legislative session they did so also without input or knowledge of their contents. They heard citizen testimony, in committee, about the abuses of the system and the courts refusal to release the content of standards revisions. Each member of the Missouri House and Senate also received model legislation from the citizenry in which they were asked to consider for inclusion into the new standards. The model legislation included, among other things:

Providing a vehicle to remove GALs who were abusing the system or not acting within guidelines

Create outside supervisory panels/boards to oversee guardian discipline issues

Provide limits for scope of investigations, to items listed on petitions that compel assigning them to the case

Impose time limits on investigations to prevent escalation of cases and prevent children from long term exposure to traumatic processes.

Require qualified expertise and additional training above the 12 hour mandate

Require GALs to pass background checks

Create avenues for families/children to communicate with the judge when GALs are overstepping guidelines or abusing their authority

Require the judges to set expenditure limits on GAL fees, and any other costs incurred in investigations

Remove immunity for GALs

Allow for punitive damages against GALs who wrongly accuse parties of abuse

All of these requests fell on deaf ears. SB237 was approved almost unanimously by the Missouri House and Senate. One lone senator, James Lembke, of District 1 cast a no vote.

GAL Standards

Missouri Legislature Votes Unanimously, Almost, To Approve GAL Standards, Sight Unseen

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On May 9th, SB237, the bill that adopted new guardian ad litem standards, was declared Truly Agreed To and Finally Passed by the Missouri House of Representatives. Ordinarily, this would not be of any significance, but in an era where law makers are trying to convince the constituency that they are more transparent and better stewards of the people’s ordinances, the vote on this issue reflected quite the opposite intention. The House voted 146 – 0 and the Senate voted 31 – 1 to pass. 13 House members were absent and 2 were absent in the Senate.

The controversy attached to this bill is the Supreme Court refused to relinquish the standards to citizens and media, and no one in the legislature had an opportunity to read them prior to approval.

With unanimous votes in the House and nearly so in the Senate to adopt standards, sight unseen by everyone in Capitol, one legislator stood alone in his vote. Jim Lembke was the dissenting voice in the Senate. Senator Lembke is a Republican who represents the people of the 1st district in St. Louis County. He was unable to be reached for comment by the time this post was published.

During Senate and House hearings, legislators heard citizen testimony in which they were asked to table the legislation until they had a chance to obtain copies of the new standards or to add verbiage to the bill which would require the Court to release the standards before a vote would be taken. The were also asked to consider adopting legislation, as many other states have, that would bring transparency to the courts and the GAL system  No such actions were taken. Children and families of Missouri now await the consequences of standards that were developed outside the scope of public or legislative scrutiny.

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Missouri Legislature/Supreme Court Work Together To Protect The System: Best Interests Of Children Ignored

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It would seem there is an inside fast track between legislators and the Supreme Court to implement guardian ad litem standards in Missouri. While a previous statute, HB1570, of 2008, requires the legislature to approve revisions to the Guardian Ad Litem standards, and the Supreme Court had formed a committee and asked for public input to the process, that seems to be where any interest in opening up contributions from the public came to an end. After several attempts, by citizens, to get copies of revisions or attend committee meetings were thwarted, the legislature moved a step closer, yesterday, to approving new GAL standards, even though they have not read them. The House Judiciary Committee voted 9-0, Do Pass, and the bill, SB237, moves to the Committee on Rules.

Supreme Court Justice, Patricia Breckenridge, testified, before the House committee, in favor of the bill’s advancement and gave a hint as to some revisions that may be seen in the changed standards, such as a reduction in the requirements for training of GALs. She stated in her testimony that it was hard to get attorneys to spend more than one day in training so the present standards that require 12 hours of training will be reduced to 8 hours and continuing training will be reduced from 8 hours to 3 hours per year. If these comments seem as if the standards are not necessarily geared toward strengthening the best interests of children, it is with good reason, because the tone of the bill itself never addressed the this aspect of enhancing the purpose of the GALs job. The bill states:

… standards for representation by guardians ad litem shall be updated and adopted statewide and each circuit shall devise a plan for implementation which takes into account the individual needs of their circuit as well as the negative impact that excessive caseloads have upon effectiveness of counsel. …

In December of 2009, Guardian Ad Litem Reform obtained a draft copy of the proposed revisions. After that time, the Supreme Court shut down all communications, on this subject, with the public. The draft reveals a shortfall of the Court to require accountability from GALs, attorneys, or judges in cases involving GALs and also stacks the deck for cases to be assigned only to paid GAL/attorneys. This practically eliminates the contribution of CASA volunteers in family court cases who have in the past provided this service for free.

Prior to yesterday’s House committee hearing, I forwarded a copy of the proposed draft revisions and a copy of a legislative outline which includes research from several states and their own rules and statutes that regulate GALs to all members of the House of Representatives. Additionally, the outline requests the legislature to add provisions to Missouri’s standards and statutes that would add a variety of transparency elements to stop the abuse being waged against families in courts across Missouri. The same information was forwarded to the entire body of the Senate. I received no contact from anyone in the Senate regarding this information, and only an acknowledgement  of receipt from a few Representatives.

I testified at the Senate hearing on February 27th, in which I met with the same resistance to bringing transparency and accountability to the GAL process. In the Senate and House hearings I asked the committees to stop the progressions of the bill and add provisions such as requiring a guardian ad litem board to keep an eye on judges/attorneys/GALs in family court and child abuse cases such as is in place in New Hampshire. GALs are immune from malpractice litigation from damaged parties. They cannot be removed from cases by anyone other than the assigning judge after 10 days of assignment. There is no avenue for families to communicate with judges concerning misrepresentation by guardians and, as most who have had experience in this aspect of family court know, attorneys often protect the process and rarely report abuse. Cases are often escalated by GALs and investigated beyond the scope of the issues that bring them into the family court circumstance. Not only is this traumatic in numerous ways to children and families, but it is financially devastating. These are just a few points I offered in my testimonies. No questions were asked by the committees relating to these points and the bill advanced through both committees. Missouri will certainly see new standards for GALs without any strength being added to protecting the best interests of children.

Once again, Bob McCarty does an excellent job of following developments in the Family Court/Guardian Ad Litem debacle in Missouri. Families all over Missouri, and the United States, are being terrorized by an abusive system that has little to no oversight or accountability. It should be noted that the court system is accountable to the House of Representatives and that impeachment of judges who do not perform their duties faithfully is the responsibility of the Missouri House of Representatives and Senate.

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No Transparency/Accountability In Missouri’s Supreme Court?

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Missouri’s Supreme Court likes to, it seems, operate without scrutiny or accountability. Bob McCarty digs a little deeper into the development of the Supreme Court’s standards for Guardians Ad Litem and finds that getting answers from the court about how they work is just not that easy. He also learns that there isn’t a lot of outside checks and balance when it comes to the judicial system and the process that is supposed to protect children and elevate their best interests above all else. So, as of this posting, the Missouri Senate passed a bill to the Missouri House in which the Supreme Court formulated a document, to be put into law, that governs those who work to protect children, without disclosing the information to the legislators within that document. Why would the court not disclose GAL guidelines to the legislature before they vote them into place? Why wouldn’t the legislature insist on seeing the guidelines before they vote them into law? If this is a case of the legal system policing the legal system, it isn’t working very well.

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Missouri’s Version of “We Have To Pass The Bill To Find Out What’s In It”

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Thanks to Bob McCarty for giving attention to a serious problem, in Missouri, relating to the workings of a judiciary that operates under the cover of darkness while they craft standards that affect children and families. Here is the link to his blog and the story:

Members of the Missouri Senate are planning to vote on legislation affecting children and families in crisis in the Show-Me State without ever reading the bill.  Reminds one of what Speaker of the House Nancy Pelosi said about “ObamaCare” one year ago this month:  “We have to pass the bill to find out what’s in it.”

Read all about it in Best Interests of Children Take Backseat as Bill Advances Thru Missouri Senate ‘Sight Unseen’, a guest post by Lisa Payne-Naeger published today atBobMcCarty.com.