Guardian Ad Litem Reform in Connecticut 2014
In contested child custody or contested visitation cases in Connecticut, the Court has the power to appoint a Guardian Ad Litem and an attorney for the child. These are two separate appointments which may be filled by two separate people or by the same person.
Essentially, the Guardian Ad Litem is appointment to do a separate and independent investigation of the case, and to make a report back to the Court. The Guardian Ad Litem will interview both parents. The Guardian Ad Litem may also interview the children if they are old enough to be able to speak for themselves. The Guardian Ad Litem will also do a home visit to investigate the home that each parent expects to live in with the child. In addition, the GAL will look at other issues such as reviewing school records, medical records and talking with any therapist whom the child is seeing, if any. The GAL will then develop an opinion, and make a recommendation concerning which parent should have custody, or make a recommendation concerning the parenting time that each parent shall have.
For those who are just beginning to look into these issues, parenting time refers to the time that each parent will have the children with them and will be responsible for parenting. We used to refer to this as visitation. However, that term left the inference that one parent was now the only parent and the other parent only got to have visits with the children. The term parenting time makes clear that neither parent has a superior position, and that both are parents and are responsible for parenting during their parenting time.
The GAL only makes this investigation and a recommendation to the court. The GAL has no power to file motions or to argue motions before the court. In fact, the GAL may find that the position of having to make a recommendation to the court and of having to advocate for the child are not the same. This would create a conflict of interest. When such a conflict of interest exists, the court will appoint another attorney to act as an attorney for the child. The attorney for the child has the power to file motions and to argue motions before the court. The attorney for the child may also engage in direct or cross examination of witnesses.
Previously, the GAL and the attorney for the minor child would be paid by either or both of the parents. This means that in addition to paying their own legal fees, the parties will have to pay the fees of the Guardian Ad Litem and possibly an attorney for the minor child. In a contested child custody case where there can be multiple motions filed and argued as well as the normal court hearings in such a case, the legal fees can be quite high. Of course you now have to add in the expense of an additional lawyer in the name of the guardian ad litem and possibly a fourth in the person of an attorney for the minor child.
The number cases in which a GAL was appointed or an attorney for the minor child has grown, and so have the legal fees. A growing number of people who have had to pay these fees have begun to voice their anger at what they saw as a legal system that was out of control. These people have claimed cases in which judges ordered them to borrow against their credit cards to pay the GAL fees or to invade money put away into a child’s college education fund for the GAL’s fees. In particularly contentious cases, a GAL might make a claim that he or she needs to be represented by an attorney to defend against accusations that have been made by one of the parents. In such cases, the courts would require the parents or one of the parents to pay the GAL’s legal fees in addition to the GAL’s fees.
Another complaint against the system was that courts were consistently appointing the same few people as GAL’s. Although there were over one thousand people who had take the course to become approved GAL’s, the courts were continuously going back to the same few people.
Change has been coming to this system. In 2014, the Connecticut Supreme Court issued a decision in Perry v. Perry, 312 Conn. 600 (2014) in which it found that the statute that authorizes the appointment of an attorney for the minor child and the payment of his or her fees does not include the payment of legal fees for the attorney for the minor child. In addition, the Connecticut Legislature passed Public Act 14-3 which made numerous reforms also. Under this act, when a court appoints a GAL, it must provide a list of fifteen approved people to serve as the Guardian Ad Litem. The court will also make a specific order of the work to be performed by the GAL, and the time period for which the GAL’s appointment will last. The parties then may agree on one person on that list. However, if they do not agree the court will appoint someone from that list.
The new legislation also allows for a sliding scale of fees based on the party’s ability to pay. This should help to keep down the legal expenses of people substantially. The new legislation does say that a part of the GAL’s fees may be paid out of the estate of the minor child, however, it specifically prohibits the payment of said fees out of any funds designated for the child’s college education including any 529 Plan. The new law also specifically prohibits a court from ordering that a party pay a GAL’s fees by borrowing against a credit card.
There is also a new provision which allows for a special proceeding for the removal of a GAL upon a motion of one or more of the parties.
This new legislation should help substantially in reforming the GAL process. However, like any legislation, it is always a work in progress, and must be monitored on a regular basis to see what is working and what is not.