Guiding the Guardians 

A group of Missoula parents steps forward to change the face of custody battles in Montana

Vincent Bray, 25, sits between his mother and sister on a light-colored sectional in a two-story house outside Lolo. Bray's two daughters—ages 4 and 2—tear through the living room every few minutes, ignoring the fact that it's almost bedtime.

Bray served nearly a year as an Apache helicopter mechanic at Balad Airbase in Iraq. He would have served his full tour, but says his then-wife—whom he'd been with since high school—began having problems caring for their children. Bray received a hardship discharge and returned home, only to face a difficult divorce and months of troubling custody disputes.

At first it looked like Bray might get full custody of his daughters, he says. But when a district court judge appointed a guardian ad litem (GAL) to the case, Bray felt he'd left one war and entered another.

Bray contends the GAL assigned to his case ignored sentiments that he get full custody. Instead, joint custody—the state's preference in divorces—became the desired result.

"I can't say that it's just been hard for me," Bray says. "Since I came home from Iraq, I've lived here and everybody in this family in some way, shape or form has dealt with trying to do the amount of work it takes to get through this."

Bray now lives with his parents, splitting his time between a job at Sherwin Williams and helping his dad make woodworking tools in a shop across the driveway. He's taking 18 credits at the University of Montana, but legal fees over the last year and a half have exhausted the money he made in the armed services. He says his only solace comes from time with his daughters.

The court continues to haggle over Bray's case. He currently has full custody of the girls, but says it's taken a year to get there and he has no guarantee of how long the situation will last.

Many with similar tales of expensive and lengthy courtroom battles believe part of the problem lies in Montana's preference to award both parents equal custody. But it's the issue of GALs—not joint custody—that prompted local parents disillusioned by the system to step forward.

Late last year, several affected parents met at the Missoula Public Library to share their stories and offer support for one another. What began as a simple support group rapidly snowballed into a grassroots attempt at altering the rules—or complete lack thereof—pertaining to GALs in Montana. Montanans Supporting Guardian Guidelines (MSGG) has since reached out to psychologists, University of Montana faculty, local legislators and the governor's office for assistance in addressing the flaws in the system.

Few members were willing to share specific personal anecdotes, admittedly full of heated he-said, she-said fighting. All expressed fear of legal retaliation in ongoing court disputes if they went on the record. But those involved with MSGG unanimously agree about speaking out on one point: GALs in Montana are highly unregulated, and that needs to change.

Montana Code Annotated (MCA) outlines a GAL's role in the court system as an individual appointed to "represent the interests of a minor dependent child with respect to the child's support, parenting, and parental contact." The legal statute lists no required training, no standard for qualifications and no guidelines for how GALs should carry out their duties. A GAL "may be an attorney," MCA states, but the code offers no further direction for who should serve as a GAL.

Some training in court procedure and family issues is offered through Court-Appointed Special Advocate (CASA) programs–county-based nonprofits funded largely through grants, county money and private donations–but these programs are strictly voluntary. GALs are free to work in private practice or on a volunteer basis under the limited description of the MCA. The district court in Missoula maintains its own list of 46 active GALs in the county, many of whom are also attorneys.

Despite the job description's vagaries, the code grants GALs access to a wealth of private information. They have nearly unlimited access to "court, medical, psychological, law enforcement, social services, and school records pertaining to the child and the child's siblings and parents or caretakers" in the course of their investigations. GALs then use information gained from interviews and documents to file recommendation reports "concerning the child's support, parenting, and parental contact."

click to enlarge Vincent Bray holds his youngest daughter during a birthday party at his parents’ house outside Lolo. Bray left Iraq on a hardship discharge in 2007, only to face a divorce and a lengthy and costly custody battle for his two daughters. Stories like his helped motivate a grassroots group of parents to affect change in Montana’s flawed guardian ad litem system. - PHOTO BY CATHRINE L. WALTERS
  • Photo by Cathrine L. Walters
  • Vincent Bray holds his youngest daughter during a birthday party at his parents’ house outside Lolo. Bray left Iraq on a hardship discharge in 2007, only to face a divorce and a lengthy and costly custody battle for his two daughters. Stories like his helped motivate a grassroots group of parents to affect change in Montana’s flawed guardian ad litem system.

Investigations can take weeks, even months, before the GAL files a report. Typical recommendations for parenting plans can range from suggested visitation schedules to mandated psychiatric evaluations of parents. GALs even have the authority to remove children from parents in emergency situations.

Parties wishing to file a grievance against a GAL carry the burden of proof that the GAL has failed to execute his or her duties. In the end, the GAL reports directly to a district judge. And therein lies the largest point of contention.

"I think everyone will tell you there are good guardians and there are bad guardians," says Simon Fickinger, an active GAL in Montana's Fourth Judicial District Court, which covers Missoula and Mineral counties. "But a bad guardian has a lot of power to get in there and really mess things up. It's a dangerous kind of thing...Anybody who has a judge's ear, so to speak, has a lot of power. And a guardian ad litem has exactly that."

Since becoming a GAL in 2003, Fickinger's handled between 75 and 100 cases, many pro bono. His work in the Fourth Judicial District Court drew so much attention that the 21st Judicial District Court—based in Hamilton—asked him to serve there as well. He accepted, and has served in Hamilton for several years. In Fickinger's experience, the GAL's role as protector is anything but light.

"Most parents are experts in their own kids because they live with them and have for a long time," Fickinger says. "Most of them aren't experts in child development—in things like attachment and things that are very important—and can very often without meaning to ask for things or try to do things with their child that could actually have a detrimental effect on the child and be dangerous for their emotional wellbeing...At core, that's the job of the guardian ad litem, to testify in court about the best interests of the child."

Attorneys and psychologists familiar with custody cases claim Montana has a predilection for awarding joint—or 50–50–custody unless outstanding circumstances dictate a more customized approach. A GAL typically enters a custody case when a judge determines an independent investigation is necessary to draft a parenting plan. They remain active with the case until dismissed by the judge. Cost of the GAL is split between the mother and father.

From 2003 to 2009, Montana's judicial system appropriated funding to cover GAL appointments for poor families. The Legislature voted to revoke the funding early this summer, and state coverage for GAL costs officially halted in July. Fickinger says GALs and families were given only a few weeks' notice about the change. The state then gave GALs two choices: continue pro bono work with poor families or drop the active cases. (Fickinger refused to drop a single case.)

Fickinger says he understands the sensitivity of custody battles; he has a teenage son and daughter. He received his undergraduate degree in psychology from Messiah College and his master's in clinical psychology from Millersville University, both in Pennsylvania. His continued work as a conflict mediator keeps him focused on issues of child and family psychology.

While Fickinger appears qualified for the position, William Stratford, a clinical psychologist in Missoula, contends Montana's GAL system is, overall, a "crap-shoot of quality." The process is lengthy and the added costs to families are often enormous. And if the state's legal conclusion is 50–50 custody from the outset, he points out, "Why should it take months and months and years to resolve these situations?" He agrees with the need to protect a child's best interests, but questions the state's current ability to do so.

"Conceptually, that's a huge point," Stratford says. "A guardian ad litem that stands back and represents the interests of the child is certainly important. Making sure the child is protected is how the system started. But I think that what got morphed was the level of involvement on the part of the guardian ad litem...They go out and do evaluations and file reports. That's the job of a professional. I think the role of protector has morphed into the role of evaluator."

Stratford, who has worked in the field of child and family psychology for 35 years, contributed to GAL investigations in regard to mental health information for 15 years. But a few years back, his frustrations with the unregulated nature of GALs came to a head. As a private psychologist, Stratford now refuses to work with any GAL, regardless of their individual reputation.

"People have tried to address the standardization question before, and what shocks me is that this has been allowed to go on so long," Stratford says. "It's such a glaring problem."

Mars Scott couldn't agree more. Over his 29 years as an attorney working largely on family cases, Scott's witnessed countless reasons why Montana needs to overhaul its statute on GALs. He's seen guardians toss their judicial weight around, make outrageous recommendations and charge clients enormous fees.

"I had one case where the guardian ad litem fees exceeded $25,000—just the GAL fees," Scott says. "And I've heard of cases that were more than that."

That's a pile of money, he adds, for someone whose position requires no more than a high school diploma.

Money aside, Scott says his greatest concern is the blind trust judges often have in GALs. He explains that because a GAL's work can be not only thankless but also downright abusive, judges often fear that by not taking guardians at their word they may discourage people from taking the job. This, combined with the lack of standardization, sets the stage for potential inequity in custody battles.

"I think the judges want to find in favor of what GALs recommend and if you're in court trying to do something different, you better have a pretty compelling case," Scott says. "It's an uphill battle, there's no doubt about it, because I think the judges want to trust their GALs."

click to enlarge From left, Emily McKey, Jen Harrington and Jodi Netzer-Schoening are at the core of Montanans Supporting Guardian Guidelines, a group of parents actively pursuing a system of standardization for guardians ad litem in the state. - PHOTO BY CATHRINE L. WALTERS
  • Photo by Cathrine L. Walters
  • From left, Emily McKey, Jen Harrington and Jodi Netzer-Schoening are at the core of Montanans Supporting Guardian Guidelines, a group of parents actively pursuing a system of standardization for guardians ad litem in the state.

Bray knew little of the GAL system when he returned from Iraq. He finalized his divorce in December 2007 and faced the task of negotiating a parenting plan. Only as the next few months played out did Bray begin to understand the ongoing legal mess he'd become involved in.

"When you've got a guardian ad litem on a case, they can dampen all the stuff they don't want the judge to hear," Bray says. "If the judge isn't hearing about what one parent does, detrimental or not detrimental, he's not getting the full story."

Bray alleges the GAL assigned to his case rarely bothered seeking his side of the custody issue. Instead he claims the GAL seemed intently focused on recommending a joint custody agreement. Constant reports and investigations by the GAL lengthened Bray's time in court, and he grew progressively more frustrated in light of his hectic work schedule and the burden of classes. The state covered his GAL bills, but the cost of keeping his attorney on the case was considerable.

"I really wanted to get a parenting plan that would allow me to get divorced," Bray says. "Just let the rest of us move on with our lives...Why make the rest of us wait and suffer and deal with all of these other things? We're basically just stuck in this, and there is no way for us to get out."

Even now, Bray sees no recourse. He says the GAL–who dropped the case when the state cut funding in July–issued a final recommendation that Bray maintain custody. Bray still asks himself why that decision took over a year to reach. He's concerned about the long-term damage his daughters have suffered for being subjects of such a drawn-out fight.

"Something should be done about this," Bray says. "I'm not saying that I'm going to go ask for a million dollars because of mental distress or anything, but I'd like to see someone recommend something. Honestly, I'd be happy with an apology."

Ruth Bray thought the answer to her son's questions might lie in a small support group that meets at the Missoula Public Library every first and third Thursday of the month. The two have only attended two MSGG gatherings since June, but so far they understand completely where the group is coming from.

"They strictly want these people to be held responsible for the things that they do, whether right or wrong," Vincent Bray says. "GALs can't do whatever."

Emily McKey just couldn't let it go. She hasn't dealt with a GAL in years, she says, but the Missoula resident still struggles with the pains she was put through fighting for her children.

At first, McKey started MSGG as a support group for parents to air their GAL grievances in a somewhat private forum. Many attendees are still tangled in legal messes, leaving them with a feeling of vulnerability should their discontent leak publicly. But within a few short months, it became clear that everyone at MSGG shared a desire to bring about some positive change in state law.

"This is some not only detrimental, harmful, hairy stuff, but it's also really crazy making," McKey says. "So I felt the need to try to make contact with parents who were going through similar things that I was going through. I knew of people through my attorney...and I knew through the various mental health professionals that I work with that there are many of us out there."

Members of MSGG prefer not to talk about their individual stories. They'd rather focus on progress for the whole, says co-chair Jodi Netzer-Schoening. With that in mind, McKey and Schoening chose not to speak beyond the fact they've both been jaded by GALs.

The group's focus paid off in June when its concerns caught the attention of state Rep. Betsy Hands, D-Missoula. MSGG e-mailed Hands toward the end of the legislative session in the hopes of gaining political ground for 2011. Hands says she could do little for MSGG initially, but she did facilitate a brief meeting in Helena with one of Gov. Brian Schweitzer's aides to put an extra set of ears on the issue. Now she hopes to carry MSGG's effort to the legislative level, drafting a bill over the next year to address the group's concerns.

"Our only standard that I understand is they have to be 18 years old," Hands says of GALs in Montana. "The caveat it that judges are going to use good judgment or try to use their best judgment for appointing guardians. I don't imagine they'd find a high school graduate and throw them into this type of situation. But certainly other states have reviewed the program and decided you should have a little more experience than, say, a diploma."

Hands gathered information on other GAL systems in the nation over the summer, familiarizing herself with where Montana stood in the greater picture. The verdict wasn't good. Many states suffer from a lack of standardization, she says, but Montana's system appears one of the most worrisome.

"It's a program that's valued around the country, and I think the limiting factor we have in Montana is a lack of funding for being able to really beef it up and give it the attention it deserves," Hands says. "That's the crux—finding some funding in these tough times that might help with training or help with certification. It could take several sessions. It's not something that's going to be solved overnight."

click to enlarge When the Missoula-based group Montanans Supporting Guardian Guidelines decided to push for change in the state’s regulation of guardians ad litem, they contacted Rep. Betsy Hands, D-Missoula. Hands plans to take the group’s initiative to the legislative level by drafting a bill that establishes legal guidelines for guardians. - PHOTO BY CATHRINE L. WALTERS
  • Photo by Cathrine L. Walters
  • When the Missoula-based group Montanans Supporting Guardian Guidelines decided to push for change in the state’s regulation of guardians ad litem, they contacted Rep. Betsy Hands, D-Missoula. Hands plans to take the group’s initiative to the legislative level by drafting a bill that establishes legal guidelines for guardians.

Hands worked with low-income families for over five years in varying positions with homeWORD, a Missoula- and Billings-based nonprofit providing affordable housing for indigent residents. She witnessed firsthand the impacts divorce and custody battles have on single parents and children. MSGG struck a chord with her.

"Just knowing that oftentimes parents use custody of their children to have control over their ex-spouse, it happens all the time," Hands says. "It's easy to make divorce more difficult."

Locally, MSGG made a major breakthrough a few weeks back when Hands asked the group to contribute to draft GAL guidelines and propose a grievance process for the district court to review. Schoening says those involved, mainly Missoula health professionals and attorneys, will likely look to other states for examples of effectiveness. Personally, she prefers guidelines like those in Washington.

The Washington court system has multiple statutes regarding GALs, outlining everything from responsibilities to a strict grievance process. GALs in the state must abide by rules concerning confidentiality of private information, objectivity in dealing with involved parties and documentation of charges to clients—to name a few.

"Although it would still be a very important role and very much affect the best interests of our kids, it wouldn't require so much of the personal opinions, personal 'what's best for my kids,'" Schoening says of such a model. "Whether that happens or not, that's probably a step in the process. I'm just happy that the guidelines are getting looked at."

Schoening is careful to note that MSGG by no means feels all GALs act inappropriately in Montana courtrooms. They understand the need for such a legal role and respect the potential personal risk GALs face in making unpopular recommendations.

"We have concerns for the guardians as well," Schoening says. "That's why it's so important for me to get across about the group that we're not against guardians. This is not about being against guardians...There are several [GALs] who my heart would tell me got involved because they cared about kids."

After moving to Missoula with his second wife in 1993, Fickinger jumped from nonprofit to nonprofit before settling into private practice as a conflict mediator. In his free time, he helped kick-start youth programs with organizations like Friends for Youth.

GAL work comes with a less sparkling reputation than his other responsibilities. For doing what his training tells him is best for children, he's been the recipient of everything from name calling to outright death threats.

"If you're a guardian ad litem, somebody's going to have a problem with you, guaranteed, even if you're fantastic," Fickinger says. "It's a job with a target because if you're doing your job right, very often one side or both sides of the parents are going to be upset with you.

"You're making recommendations right to the judge about the kid," he continues, "and unless what you think is most appropriate somehow happens to align with what they're thinking, they're going to be upset."

Ann O'Connell has received her own list of threats in her 14 years as a GAL. At one point, her sons worried that her car stood out as one of only a few Honda Elements in town, making her an easy target. O'Connell shrugged off the warning. It's part of dealing with emotionally charged situations, she says.

"You can't blame people for being emotional about their children," O'Connell says, "but there's people that go over that line and are threatening or attack you other ways, professionally. It's vicious."

O'Connell began working pro bono GAL cases in 1995 in addition to her work as a legal investigator. Six years ago, when the state began funding GAL work for poor families, she jumped on full-time.

"I didn't really expect it to turn into a full-time job, to tell you the truth," she says. "But it ended up doing that, mainly because I got a lot of professionals that would recommend me on cases."

While she believes some level of experience or training should be required for GALs, O'Connell doesn't agree that the system should place added emphasis on education. A law degree or a master's "doesn't mean you're going to make a good guardian ad litem," she says, adding the mere fact that GALs answer directly to a judge should be check and balance enough.

"I think you should always have in the back of your mind that you don't know everything, you're not God-like or something," O'Connell says. "You're just presenting the evidence to the court and making recommendations. But it's the judge that makes the final decision. I think that's the thing people don't realize. You may have the ear of the court, but they don't always follow your recommendations."

click to enlarge Simon Fickinger has worked as a GAL in Missoula since 2003. GALs represent the best interests of children during custody proceedings, a role Fickinger considers extremely valuable. But he says the state’s lack of guidelines for GALs creates potential problems. - PHOTO BY CATHRINE L. WALTERS
  • Photo by Cathrine L. Walters
  • Simon Fickinger has worked as a GAL in Missoula since 2003. GALs represent the best interests of children during custody proceedings, a role Fickinger considers extremely valuable. But he says the state’s lack of guidelines for GALs creates potential problems.

In late September, MSGG took another step by sharing some of their stories with a clinical psychology class at the University of Montana. Schoening says the plan is for UM to take up the research end of their initiative by analyzing the GAL issue in a series of class projects. The final results will end up in the hands of professionals for use in drafting local guidelines. Hands says the research could also prove essential in the legislative process.

Local GALs aren't against changing the system. Fickinger agrees that the MCA statute leaves too many doors open for possible misconduct. He says he welcomes legal guidelines for the position, as long as the initiative doesn't push too hard.

"There ought to be some qualification, there ought to be some training," he says. "Those are the things I think are really important...The problem with moves like this is that people start off trying to make things safer for people and to solve some very, very real problems that someone has experienced. It usually doesn't stop there. It usually goes to the point it's supposed to go and then off into the ridiculous."

Attorneys and professionals echo Fickinger's desire to see standardized qualifications for GALs, reiterating the damage shoddy guardian conduct can inflict.

"By and large, I'm supportive of having basic requirements in place for someone to be appointed as a GAL," says Scott. "I think there's this sort of idea out there among the public that it's a great thing if someone could just walk into court and help people with their parenting and child situations and make recommendations...The problem is, it's really an area that needs people that have the appropriate training and education to understand not only the dynamics within a particular relationship but also basic understanding of child development."

A localized review, when complete, will push MSGG closer to its end goal of creating statewide change. But for now the group remains focused entirely on establishing a pilot set of guardian guidelines for Missoula. They won't write the draft guidelines, Schoening says, but they'll stand over the shoulders of professionals while their stories drive the process forward. Hands says any legislation she pursues in the next year will require feedback from all involved parties, especially judges, making the value of just one district court review considerable.

"Any awareness that we can bring, be it an individual, be it a group, be it guideline changes, to me is a success," Schoening says. "If it's supporting somebody else that's in the middle of something, I believe our group is a success. If it's getting judges to actually sit down or a volunteer group to sit down, I believe it's a success."

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