Spring 2002, pg. 90. Guardians ad litem in divorce and parental rights and responsibilities cases involving low-income children.


Maine Bar Journal


Spring 2002, pg. 90.

Guardians ad litem in divorce and parental rights and responsibilities cases involving low-income children

Maine Bar JournalSpring 2002Guardians ad litem in divorce and parental rights and responsibilities cases involving low-income childrenALISON BEYEA, FRANK D'ALESSANDROEvery weekend when I come home from Daddy's apartment, Mommy asks me what I did all day. She asks me about Daddy's new girlfriend and tells me taht Daddy is mean for leaving us. I asked her if I could go on the class trip this week but she said there is no money because Daddy hadn't paid child suport. Daddy's girlfriend said all my Mom does is buy new pairs of shoes with the money he gives her. Dad told her not to worry because he was going back to court. I just wish they would stop screaming at each other. I just wish things would go back to the way they were.

When couples with children, married or unmarried, decide they can no longer maintain their relationship, they often turn to the judicial system to sort out disputes related to their children. Some of these court cases become highly contested. When parents are at war with each other, the judicial system becomes the theatre of battle and children the main casualty. In this inflammatory and potentially dangerous environment, parents ask the court to make a multitude of decisions: where the children will live, which parent will make medical decisions, what the contact schedule will be between parent and child. The court's best efforts to make these decisions are often hindered because the court is without impartial, objective evidence related to the needs of the children involved in the case. Under the traditional legal model, while the parents can secure legal representation and advocacy, children have no right to retain counsel.

The statutory solution to this problem is the Guardian ad Litem (GAL). The court appoints a GAL to represent the child's best interests in legal proceedings. Although the GAL is the legal representative of the child, the GAL does not serve as a lawyer for the child. Rather, the GAL advocates for what is in the child's best interests and provides the court with information about the children and their families so the court may ultimately issue a custodial decision that serves the best interests of the child.

Although a GAL may be appointed, there is no legal entitlement to a Guardian ad Litem in family law proceedings. If a family is unable to pay for the services of a GAL, or to secure the pro bono efforts of a GAL, a child's interests will remain unrepresented. Representatives of the judicial system, the Legislature, the legal community and child advocates have long argued that GAL services are crucial to the positive welfare of children in contested family law matters, and the unavailability of GALs in these cases leaves an enormous gap in needed services for poor children of Maine. In response to this identified need, a coalition of combined interests came together in 1998 and created the Muskie GAL Project.

The project, named in recognition of Senator Muskie's long-standing commitment to low-income children, has two goals. First, the GAL project provides actual representation to some of the children in need by funding a fellowship staff attorney position. Based at Pine Tree Legal Assistance, the staff attorney represents low-income children in York County. To date, the Muskie Fellow has represented over 70 low-income children and will continue GAL representation until fall 2002. The second goal of the GAL project is to evaluate the use of GALs in contested custody cases involving low-income children. In addition to the Muskie Fellow's evaluation of the current system, surveys were conducted of many stakeholders in the process so that the system could be evaluated from a number of perspectives. This Muskie GAL Report is the product of those evaluations.

The Muskie GAL Project's research demonstrates that there are measurable benefits to children from the appointment of a GAL in contested family law cases. The results of the surveys show that GALs are viewed to effectively represent the best interests of a child in family law proceedings. They connect families with needed social services, assist the court in making difficult custodial decisions, reduce conflict between family members, assist in settlement and expedite the legal process.

But the picture is not perfect. The research also reveals two important concerns. First, the previously recognized gap in services to low-income children is significant. There are 500-850 cases a year involving children who fit the criteria for GAL representation but who cannot access the service because there are no state or private funds to pay for GALs. Second, the quality and effectiveness of GAL representation could be enhanced significantly through increased training and a wider availability of social service resources.

The contents of the report are as follows: Part I describes the existing system of child representation in Maine. Part II evaluates the system and set forth the findings generated by the research. Based upon this research, Parts III and IV sets forth recommendations and conclusions.

  1. Current Child Representation in Maine in Divorce and Parental Rights and Responsibilities Cases

    Custody disputes arising in divorce and parental rights and responsibilities cases are governed by Title 19-A of the Maine Revised Statutes Annotated.(Fn2) Jurisdiction in these cases lies with the District Court. As in any civil matter, each parent may retain an attorney to represent them in the proceeding. By contrast, children may not hire an attorney to represent their interests in their parents' divorce.(Fn3) The court, however, may appoint a Guardian ad Litem to represent the child's best interest in a contested family law proceeding.(Fn4)

    A Guardian ad Litem "in a custody dispute is an adjunct of the court."(Fn5) The Guardian's "central responsibility is to assist the court in its role as parents patriae to determine the best interest of the children."(Fn6) In the investigation, the GAL is directed to apply the best interest of the child standard.(Fn7) The statute explains that in considering an award of parental rights and responsibilities with respect to a child, the GAL shall consider "as primary the safety and well-being of the child."(Fn8) The statute further directs the GAL to consider factors such as the age of the child, the child's relationship with the parents or other significant adults, the motivation of the parties involved, and the parents' capacity to cooperate with each other in regards to child care.(Fn9)

    In addition to the best interest standard, GALs must abide by statutory requirements set forth in 19-A M.R.S.A. § 1507. The GAL must conduct a face-to-face interview with the child and submit a written report of investigations, findings and recommendations to the court and each party.(Fn10) The statute further describes optional duties, making it clear that the court may set forth more specific duties for the GAL as the demands of a particular case requires.(Fn11)

    In 2000, the Supreme Judicial Court issued Rules and Standards of Practice that elaborated on the statutory provisions and set forth in greater detail the role and responsibility of a Guardian ad Litem. At the direction of the Legislature, the Court also imposed new eligibility requirements for GALs in Maine. Most significantly, state law now requires GALs to attend a sixteen-hour training and submit an application to the Chief Judge of the District Court.(Fn12) The Court then evaluates the application and determines whether the applicant has the necessary qualifications to serve as a GAL.(Fn13) If accepted, the GAL is placed on a list of rostered GALs and may be appointed to represent children's interests.

    In contrast to child protective proceedings, there is no legal entitlement to a GAL in divorce and parental rights and responsibilities cases. Nor are there state funds to pay for GALs as in child protective and guardianship cases. As a result, the availability of GALs is currently limited to those families who can afford the GAL fee or are able to access the free services of Pine Tree Legal Assistance, the Volunteer Lawyers Project, the Muskie Fellow, or the pro bono (uncompensated) services of a private Guardian ad Litem.(Fn14)

  2. Evaluation of Current GAL Representation

    A central goal of the Muskie GAL Project is to test the assumption that GALs provide a beneficial service to children. To do this, the project surveyed the three groups of professionals who work most closely with children in contested family law proceedings: members of the judiciary, attorneys and GALs.(Fn15) In addition, the project conducted internal case reviews of the Muskie Fellow's GAL representation of low-income children, and in-depth, in-person interviews of judicial, attorney and GAL representatives. The results of this research suggest that GALs play an important and effective role in contested family law proceedings and that the benefits of GAL appointment accrue to children, their families and the court system.

    1. Benefits of GAL representation

      1. GALs Are Critical in High-conflict Custody Disputes

        Although the potential universe of GAL appointment is broad (any case involving a child), there is consensus in the data that GAL representation is critical in high-conflict custody disputes.

        In high-conflict cases, the parents verbally abuse...

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