‘The GAL system is broken’

Children involved in family court disputes are often poorly served by lawyers appointed to represent them, attorneys and other observers say. Surveys of lawyers and court volunteers reveal concerns that some guardians ad litem – paid to advocate for children in custody and other family law cases – are not doing a proper job.

The system is “off the rails a little bit,” said family lawyer Peter V. Chiusano of Virginia Beach. Another lawyer described the GAL program as “broken.”

Details about the problems, and an ongoing effort to find solutions, came to light only recently as word emerged about two scathing surveys and a court-appointed workgroup that has been quietly studying improvements since last year.

Possible reforms may involve beefed up training and mentoring for guardians ad litem. One proposal – to require GALs to sign forms certifying the quality of their work – found no traction among legislators or judges.

Family lawyers say they remain frustrated by a system that provides little accountability for colleagues who fail to meet expectations as GALs. Advocates say the real victims are children forced to live with unfit parents because of shoddy GAL investigative work.

Bad apples

Family lawyers sounded the alarm. Chiusano and other members of the Virginia State Bar Family Law Section were getting reports that some GALs were not performing their duties, which include investigating a child’s situation, talking to the adults involved in the child’s life, and advocating for the best interests of the child.

Richard E. Garriott Jr. was chair of the VSB Family Law Section at the time. He said the section kept hearing complaints, mainly from custody cases, that some GALs were falling short.

“Some do yeoman work, uncover everything they can and meet all the goals as professionals, but you’ve got those who don’t do anything,” Garriott said.

“This GAL system is broken,” said Larry Vance of Winchester. The attorney is current chair of the VSB Family Law Section and a member of a workgroup seeking solutions. He spoke only as a private attorney, however.

In juvenile and domestic relations courts, he said, most of the parties are self-represented and “at the mercy of guardians ad litem.” When a GAL fails to perform, children have no voice in court.

Even when lawyers are involved, they complain they are hamstrung when a GAL offers a misleading or incomplete report at a court hearing. As an attorney with a client, the GAL is ordinarily not subject to cross-examination. To impeach an inaccurate report, a lawyer would have to call as witnesses all the people the GAL should have interviewed.

Moreover, Vance said, lawyers are reluctant to call out a bad GAL in front of a judge, fearing a backlash with the next case.

“I have a duty to my future clients, as well,” Vance said. “It’s almost an irreconcilable conflict.”

Even judges who recognize that a GAL is falling short have little recourse. The law gives them no authority to write down the lawyer’s bill or to strike an attorney from the list of court-appointed GALs, Vance said.

And, unlike with regular representation, clients have no way to complain about a poor GAL.

“A two-year-old cannot call and tell the Virginia State Bar a lawyer performed unethically,” Vance said.

Surveys confirm a problem

Two years ago, the VSB section decided to poll its members. The results and the comments were “pretty striking,” Chiusano said.

In a 2015 survey of 438 family lawyers, when asked about the quality of GALs in their part of the state, most family lawyers said GALs were “Above Average” or “Average.” But 12.4 percent said their region’s GALs were “Below Average” or “Poor.”

Only 25.2 percent answered “yes” when asked if GALS were held accountable when they failed to conduct requisite investigations and interviews. Only 38.8 percent felt they were able to tell a judge about problems with a GAL’s effectiveness.

Garriott said the survey showed GAL practice is different around the state. For instance, some judges accept oral reports, while written reports are expected elsewhere.

“There are no uniform rules of the game on how GALs are being utilized,” Garriott said.

Even more discouraging was a 2017 survey of volunteer Court Appointed Special Advocates. Asked about the average quality of GAL representation in the prior year, 43.71 percent of the CASAs surveyed said the GALs needed either “Some Improvement” or “Significant Improvement.”

Asked how often GALs interviewed the children they represented, 41.83 percent of the CASAs said “Seldom” or “Never.” More than a quarter of the CASAs surveyed said the average quality of oral reports provided by GALs needed improvement. For written reports, the comparable figure was 12.26 percent.  Asked how often, on average, that GALs communicated with all parties, more than half the respondents said “Seldom” or “Sometimes.”

Sharp comments

Anonymous comments from CASAs were plentiful, some damning.  Respondents repeatedly described GALs who relied heavily or exclusively on the investigation of the volunteer advocates rather than doing their own spade work.

“Almost none of the GALs I have worked with over the last seven years have followed the cases personally until immediately before Court,” one of the advocates wrote, adding, “There were two exceptions who were engaged throughout the duration of the cases.”

“The guardian ad litem position in our county is welfare for bad lawyers,” another wrote. “They spend very little time on the case, 10 minutes before court is the most.”

“I’ve even witnessed one or two GALs lie directly to the judge, saying they’ve met with the children when we know that they have not,” still another said.

Many comments lauded the work of conscientious GALs. Praise for good GALs was often presented in contrast to accounts of those who fell short.

The CASAs said GALs would benefit from more training on their roles, duties and responsibilities and on communicating with children.

Certification rejected

A proposal to make GALs sign a written certification that they had complied with published standards for their work received a chilly reception, both in the General Assembly and before a judicial-legislative panel.

Twice, in 2016 and 2017, the House of Delegates Courts Committee rejected the idea. In October, the Judicial Council of Virginia voted against a similar proposal.

The October recommendation came from a 14-member workgroup appointed in 2016 by the Supreme Court of Virginia. Members are judges, lawyers and others in the family law system. The workgroup arranged for the CASA survey.

The group said requiring GALS to sign a certification form in each case was intended to “bring to light the extent of a guardian ad litem’s investigation” and to “increase the frequency by which judges hold guardians ad litem accountable.”

Members of the Judicial Council of Virginia turned thumbs down.

“These are professionals …. If they aren’t doing what they’re supposed to be doing, that’s why we’re here,” said Circuit Judge Clifford “Clay” Athey of Winchester.

Legislators had a similar negative reaction, said Del. Greg Habeeb, R-Salem, who chairs the civil laws subcommittee of the House Counts Committee.

Workgroup continues

The GAL workgroup continues to meet, focused in part on improving the training and mentoring of GALs, according to Sandra L. Karison of the Supreme Court’s administrative office. The chair of the GAL workgroup is Culpeper Circuit Judge Susan Whitlock. She did not respond to a request for information on the committee’s work.

A report to the Judicial Council said the workgroup met five times during the past year and has convened smaller groups to address distinct issues, including reporting by GALs, mentoring and training, judicial training for accountability of GALs and evidentiary and procedural issues arising in GAL practice.

“Many good things are in the works,” wrote Vance as chair of the VSB’s Family Law Section in a recent report to members. “Hopefully, a more uniform performance from our Guardians ad litem is on the horizon,” he said.