Caught in a circular firing squad

Posted Tuesday, March 13th, 2012 by Gregory Forman
Filed under Child Custody, Family Court Procedure, Guardians Ad Litem, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

I have increasingly come to the conclusion that being a guardian ad litem in South Carolina for private custody cases is an impossible task if one is going to do it well.  The system, as currently constituted, weeds out good guardians while leaving the ineffectual and milquetoast in place.  The work has become so distasteful I no longer actively seek it.  I strongly discourage new family law attorneys from trying to make it an exclusive part of their practice.

The problem goes to the very nature of guardian work.  A good guardian investigates the situation and reports back to the court and the parties in clear language what he or she has learned.  Typically custody cases fall into one of four broad categories.  Even assuming the guardian’s report is accurate and balanced, in at least three of these categories someone is going to be unhappy with the guardian.

The best types of custody cases are those in which the guardian’s investigation shows that both parties are excellent, concerned, and actively involved parents, who have no major and few minor dysfunctions.   This is the only situation in which a guardian’s report can leave both parties happy.  However, even then, one party can be unhappy with the guardian.  That party can object, believing the guardian’s report overstates the other party’s strengths or minimizes that party’s weaknesses.  Even if the parties find the guardian’s report to be accurate, they might still show frustration with the guardian if that report impedes settlement (and such reports will generally impede settlement unless the parties can agree to shared physical and legal custody).

A second type of custody case is one in which the guardian’s investigation shows that both parents are adequate but that one parent is clearly superior (more involved; better adjusted; more closely bonded to the child).  An accurate report is going to anger the merely adequate parent.  Further if the “better” parent does not have temporary custody, that parent will likely be pushing the guardian to seek or support a change of custody.  However, the guardian is prohibited from issuing a written report with “a recommendation concerning which party should be awarded custody.”  S.C. Code § 63-3-830(A)(6).  This makes it difficult for a guardian to advocate a pendente lite change of custody unless there is something truly dangerous to the child.  Further, advocating a pendente lite change of custody that the family court does not approve renders the guardian’s subsequent work rather ineffectual.  Thus, even a parent who is happy with the guardian’s report may be unhappy with the guardian.

I was a guardian in a case fitting this description shortly after the new guardian ad litem statute went into effect in 2003.  Before I was appointed, Mother was awarded custody at the temporary hearing, primarily due to Father’s adultery.  My investigation uncovered that Father was a vastly superior parent: the child was more closely bonded to him; he was more involved at the child’s school and in the child’s education; he had a better relationship with the child’s care providers; he engaged in numerous child-centered activities when he had the child.  Mother was extremely unhappy with my preliminary report documenting this.  Father was extremely unhappy that I didn’t advocate an immediate change of custody.  Father ultimately obtained custody but both parties were displeased with me throughout the case.

A third type of case is one in which the guardian’s investigation determines that one party is fit and the other party is clearly unfit (my offhand definition of unfitness is “would I feel comfortable leaving my child alone with this person for an afternoon”–admittedly a very low threshold).  These are typically cases which should have resolved without much litigation but for the unfit parent’s refusal to accept the obvious.  The party the guardian finds unfit will spend the remainder of the case attacking the guardian.

The final type of case is one in which the guardian finds everyone to be unfit.  If the family court accepts the accuracy of the guardian’s report, the parties’ children will typically end up in foster care or in the custody of a third-party.  In such cases, everyone will be attacking the guardian.

The biggest problem with being a guardian who has made one or both parties unhappy is that many litigants in family court have no hesitation to defame the guardian in an attempt to discredit the guardian’s investigation and report.  The most recent case in which I was the guardian involved a 78 year-old great-grandmother as one of the parties seeking custody.  When I did not advocate her position that she should have custody, she began throwing wild accusations.  She would repeatedly tell folks I said things I didn’t say and claimed that I did things I didn’t do.  At court once, while in the midst of forty-five minute stream-of-consciousness response to a question posed by her attorney–“how’s your health?”–she alluded to the “fact” that I wanted to have sex with her, implying that the reason I wasn’t advocating that she obtain custody was because of her refusal to give into my alleged desires.

Someone can tell a hundred lies about you but if the court believes just one of these lies, your reputation and livelihood can be ruined.  The family court does nothing–zero, nada, zip–to protect guardians from such outlandish allegations.  In such circumstances to do a thorough job as a guardian is to be expected to accept a continuous trashing of one’s reputation without any real recourse.  Representing parents, rather than children, in custody cases not only pays better, it’s much less stressful.

Thus most guardians either get out of the business or become extremely bland in their investigation and reports.  Rather than providing the court a thorough assessment of what their investigation observed and uncovered, such guardians issue vague reports that offend no one but do little to help the court understand what might be in the child’s best interests.  In my experience, the longer someone has worked as a guardian ad litem and the greater percentage of their time devoted to guardian ad litem work, the less likely that guardian is to be useful.  In what other field are experience and effectiveness inversely correlated?

So long as the court system allows litigants to treat guardians as the target in a circular firing squad we should expect good guardians to leave the field and experienced guardians to keep their heads down.

10 thoughts on Caught in a circular firing squad

  1. MJ Goodwin says:

    Bad day, Greg? I have done GAL work for about 20 years now. My general view is that I have not done a good job for my ward unless I have pissed all litigants off. As for the Court not protecting me, I have found that Judges will not put up with GAL bashing and will not hesitate to shut it down quickly and usually to the detriment of the party trying to do it. I like being the GAL. I get the best “client”, the child. Some come back years later and thank me. That makes it worth it to me.

    1. Not a bad day at all MJ. However, you get accused in open court and under oath of wanting to have sex with a litigant and tell me how well you feel.

  2. Van says:

    I think you have only touched the surface of the problems within the GAL system. My gripe is when the innocent party has to pay for an attorney for the GAL.

  3. Liz Stringer says:

    Having done GAL work for over 12 years, I can understand your perspective. However, I do not believe I have become in any way complacent or ineffective. If anything, I draft Preliminary Reports that are much more direct and issue-driven. I have also found that judges back me up. With all that said, I have become better at covering myself with all my GAL cases–email is a wonderful thing. While my practice is far from all GAL work, I find it to be fulfilling overall (second to my mediation practice which is almost always fulfilling).

    1. Now Liz, I adore you but let me remind you about the last time I was the guardian in one of your custody cases: I issued a preliminary report that no party challenged for accuracy but everybody hated. I don’t recall you telling your client to stop blaming me.

      As you note, guardian work isn’t your main practice area. It’s the folks who do guardian work as their primary practice area who typically lose effectiveness over time. My experience is they become more concerned with pleasing everyone than doing their job. Of course there are times an ineffectual guardian is just what I want. Such guardians can be quite useful then.

  4. ned dennis says:

    i agree with you greg. i will spare you my horror stories. suffice it to say that i no longer accept appointments.

  5. Paul D. Schwartz says:

    Points are well taken Greg. I do not believe I fit your description, but I understand where you are coming from. True the Guardian Ad Litem does become the target at times. If the Guardian has done his or her job, that should be surmountable, especially at trial since the complaining parties testify first. I have ended trial with my cross examination of a party welding such an attack, because the Guardian almost always knows more than any party or attorney in the case from interviews and home visits. I do not agree with preliminary reporting because as stated by Greg, some one then is at odds and uncooperative or if your suggestions are ignored by the Court, you are then ineffectual.

    One pet peeve of mine is judges who appoint a GAL and in the Order are require a two (2) week or ten (10) day investigation, do not retain jurisdiction and when report is done and submitted the reaction is luke warm and no action is taken as a result. I have had this happen on many occasions, and would prefer the judge so ordering retaining jursidiction to then act upon the report. This has left me out to dry on more than one occasion.

  6. C Bennett says:

    I am not an attorney but I watching a close friend of mine have the worst experience with a GAL. Two months later and still no preliminary report completed, no home visits and she does not even respond to email or phone calls. In the meanwhile an innocent child sits in a home with infested with bugs and overcrowded with 10+ ppl. Retainer fee wasted, my opinion, how can she file a complaint against this GAL? I would request another GAL be assigned at this point, court is in 2 weeks. The case is very unique in that couple is same sex and neither have any legal documents for the child but has raised him since birth for all his life.

    1. Marrion says:

      I am starting a group to address the GAL issues I had a very very bad experience my GAL was experience was awful. Everyone keep saying I am sorry like this should fix a broken system and make it better.

      I am seeking people with similar experience that want to work together to stop this horrendous brutality.

      Contact information is

      Marrion Baker
      803 865 2935

  7. Jackie says:

    I am not an attorney either, but I can tell you I am watching my daughter go through a nightmare situation in a case for just “liberal visitation” filed against her. A GAL was appointed with an hourly rate and cap of $3,500 in the Order (no offense Mr. Foreman but we know this cap works as a summit to reach). Why would a GAL be necessary in a matter that only has a question of whether standard or liberal visitation is warranted, especially when there are more than enough facts in the case and case law to present. Does the court really need a GAL to help them in deciding the amount of visitation a non-custodial parent should receive. Well, the prior GAL did not do a good job and did not file his final report with the court as mandated by the statutes. He could not make it to the final hearing and passed away later the same day. Now, the attorney for the Plaintiff has motioned the court for another GAL to be appointed, which my daughter argued against, but the visiting judge ordered one anyway. This new GAL now has a cap of $5,000. I think this is absurd in a case that he almost two years old and had a final hearing scheduled in February. It is over! Get on with it. The prior Guardian was 31 years old, never been married and had no children. What qualifies him to work on a case like this? This newly appointed GAL also looks young, but my daughter doesn’t know much else about him. GAL’s who are appointed to represent children should, at least, have some experience in that regard. I thought that statue was clear when it said the court “may” appoint and “only” when it cannot determine the facts with the input of a Guardian. It seems like the judges just automatically appoint even when they might not be necessary. They are an added expense to a case, and to utilize them for simple matters such as this only takes them away from more important cases with real issues that warrant a GAL (such as custody battles or abuse and neglect). Sorry for the vent. I would love to know your opinions on this subject. Thank you for your time.

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