Guiding the Guardians 

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

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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."

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