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Increased accountability

Guardians ad litem can be asked to detail their work

kid_mainJudges concerned about whether guardians ad litem for children are meeting expectations for their work will have a new tool to check.

One judicial panel this month approved a form for a lawyer to disclose actions taken as an appointed guardian ad litem. Another judicial panel rejected a suggestion to weaken language in the standards spelled out on those forms.

The actions seemed to signal a new resolve among judicial policymakers to ensure that lawyers live up to expectations when they undertake to protect the interests of children in court battles.

The changes follow General Assembly approval of a judge’s authority to cut pay for an appointed guardian ad litem who fails to meet expectations. While clarifying that judges hold the power of the purse, the Assembly rejected mandatory certification of compliance with standards. That issue could return in 2019.

Long standing issue

Concern about the performance of court-appointed GALs for children has been simmering for more than two decades, reported Culpeper Juvenile and Domestic Relations Judge Frank W. Somerville. He spoke May 8 to the Judicial Council of Virginia, a Supreme Court panel of judges, legislators and lawyers that addresses court policies.

The General Assembly first established standards for GALs in 1994. Recent surveys revealed pervasive complaints that some appointed GALs still fell short and that the system was ill-equipped to hold them accountable. A 2015 survey produced “really distressing information,” Somerville said.

A court-appointed workgroup recommended mandatory certification that a GAL had complied with the standards, but the idea failed to win support with last year’s Judicial Council or with legislators.

Council members last year expressed reservations, suggesting the standards should be couched in language using the word “should” instead of “shall.” One judge suggested it would be demeaning to ask lawyers to certify they met their responsibilities.

Judges’ study

Virginia Chief Justice Donald W. Lemons took another tack. He asked a group of six circuit and J&DR judges to review the standards. The panel recommended keeping the “shall” language and clarifying lawyers’ obligations.

The panel also urged use of the certification form as an option for judges, changing the name to “disclosure form.” The “disclosure” term has “less of the quality of an affidavit and becomes more of a simple recounting,” according to a memo summarizing the judges’ view.

As a declaration to a court, it would nonetheless be a “pleading” subject to the good faith pleading statute, Va. Code § 8.01-271.1, the memo said.

Family law attorneys were driving the push for accountability, Somerville said.

“The lawyers were the people who were pushing that, not the judges,” he said.

The optional form was approved May 8 by the Committee on District Courts. The Judicial Council then approved the recommended new format for the standards for GALs for children, without any substantive changes in the language.

Standards clarified

The reviewing judges did not see the standards as onerous.

“We would ask the Judicial Council to step back and leave the standards the way they are,” Somerville said.

There are “some really significant concerns” in the bar, not only about the performance of guardians ad litem, but also about their accountability to the appointing judges, said Virginia Beach J&DR Judge Deborah V. Bryan, who served on the review panel. Bryan also is a member of the Judicial Council and the Virginia State Bar Family Law Section board of governors.

She said leaving the word “shall” as a predicate to the standards gives judges “enough teeth to hold them accountable.”

Lemons expressed concern about whether a new emphasis on meeting standards would lead to increased fee expenses, perhaps as a result of additional litigation over the best interests of children.

If so, “It’s a price that we must pay,” said Norfolk Circuit Judge Jerrauld C. Jones, adding the standards were essential to the safety of children.

“I just think we have to do whatever we have to do to make it work,” Jones said.

Better GAL work could bring reductions “on the back side” as more cases settle early, Somerville suggested.

Understanding the standards may be easier with the new format. An unannotated version of the Performance Standards is set out at the beginning of the document.

“Such a rendition emphasizes how basic are the standards, how they reflect other basic obligations of an attorney, and how coherent they are as a whole,” the reviewing judges said.

Changes welcome

Action by the judicial panels was welcomed by Winchester attorney Larry Vance, a longtime advocate for GAL accountability. Although a member of a court-appointed workgroup and chair of the VSB Family Law Section, he spoke only as a private attorney.

“I’m glad to see the dam has started to crack and we see some impetus to change,” Vance said. “These changes will have an immediate effect on the quality of representation for children.”

Vance spoke of past “horror stories” about poor GAL performance from lawyers representing indigent clients.

“I am guardedly optimistic we have turned the corner and are headed in the right direction,” he added.