Guiding the Guardians 

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

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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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