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VOL. 124 | NO. 39 | Thursday, February 26, 2009

High Court Takes Conservative Stance on GALs

By Bill Dries

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Starting in May, courts across the state will have new guidelines for appointing guardians ad litem.

The provisional rules adopted by the Tennessee Supreme Court this month call for fewer appointments of GALs to represent the interests of children or adults with diminished mental capacity in court proceedings.

Tennessee Supreme Court Chief Justice Janice Holder of Memphis also said the rules will better define what their role is in the court proceedings, such as divorce or child custody matters.

Holder, in a written statement, said the new rule, 40A, “should result in a reduction in the frequency of appointments of guardians ad litem.”

The guidelines are posted on the Web site of the state Administrative Office of Courts, www.tncourts.gov.

“They also give those appointed as GALs clearer direction about the duties a GAL must perform as well as limitations on a GAL’s involvement in a case,” Holder said. “The proper role of the GAL is to represent the best interests of children involved in divorce and other custody proceedings, and this rule gives clear guidance about how to properly carry out that duty and should reduce the overall costs to the parties.”

‘Glitch in the system’

The guidelines, which are to be reviewed in May 2010, are the result of a set of 2007 hearings by the Tennessee House Children and Family Affairs Committee.

John DeBerry

Democratic state Rep. John DeBerry of Memphis, chairman of the committee, said the panel heard complaints about the GAL process from people involved in child custody disputes. The Legislature considered acting on those complaints, which could have triggered a lively debate about the separation of powers between the legislative and judicial branches of state government.

“Under the separation of powers doctrine, using guardian ad litems in litigation is really more of a court (or) judicial branch function,” said Buck Lewis of Memphis, president of the Tennessee Bar Association. “So, the court wanted to have an opportunity to express itself on the issue.”

DeBerry credited Holder and her predecessor as chief justice, William Barker, for making “an exhaustive study of the issue.”

“I don’t want to point the finger at anybody. I don’t want to accuse anybody of anything,” DeBerry told The Daily News. “But the judges saw a weakness in the system to where certain rules weren’t in place to say you can charge a certain amount – (that) a guardian ad litem should be appointed at certain times for certain reasons and for certain results. I think they saw a glitch in the system that needed to be fixed. And I think that’s what they did.”

Reason vs. emotion

DeBerry’s committee sessions on the matter took place less than a year after the Tennessee Supreme Court ruled in the controversial child custody case of Anna Mae He.

RULE 40A
These are excerpts from the Tennessee Supreme Court’s new provisional rule for the appointment of guardians ad litem. It takes effect May 1.
  • “Courts should not routinely appoint guardians ad litem in custody proceedings. Rather the court’s discretion to appoint guardians ad litem shall be exercised sparingly. In most instances, the child’s best interests will be adequately protected by the parties.”
  • “The court shall provide in the appointment order as much detail and clarity as possible concerning the guardian ad litem’s duties and authority.”
  • “A guardian ad litem shall immediately disclose any relationship or associations between the guardian ad litem and any party which might reasonably cause the guardian ad litem’s impartiality to be questioned. This disclosure shall be made no later than 15 days after appointment.”
  • “The appointment order shall specify the hourly rate to be paid the guardian ad litem, the maximum fee that may be incurred without future authorization of the court, the allocation of the fee among the parties, and when payment is due. … The court shall consider the financial hardship to the parties of imposing further costs in the proceedings.”

DeBerry and Lewis said the complaints they heard involved other cases and did not specifically stem from the He case.

The Juvenile Court-Chancery Court saga pitted He’s biological parents against her foster parents in a dispute over whether her biological parents voluntarily and permanently relinquished their custodial rights.

The Supreme Court ruled He should be returned to the custody of her biological parents. And the court’s ruling was critical of how the legal system handled the dispute, saying the Hes were mislead at several key points in the controversy.

The ruling also spotlighted the actions of the guardian ad litem in that case and how it may have influenced a court order barring the child’s natural parents from having any contact with their daughter during a crucial period in the legal proceedings.

“The guardian ad litem testified that she did not recommend visitation because ‘the status quo was that the child had not seen her biological parents in a number of months, I didn’t believe that throwing the child into something different than the status quo was necessarily in her best interest,’” reads the October 2006 ruling. “She believed that (Anna Mae He) was attached to the Bakers and considered them to be her parents, although the guardian ad litem had never seen (Anna Mae He) with her biological parents. She further stated that she had read a book about Chinese girls being placed in orphanages and consequently was concerned that the parents wanted to return to China.”

It was on a motion from the guardian ad litem that the Hes were ordered to surrender the child’s passport. The Hes were also ordered to pay $15,000 in fees to the guardian ad litem and pay for the cost of a DNA test and psychological evaluations of the child, as well as both sets of parents recommended by the guardian ad litem.

Regional differences

Rule 40A includes elements from a proposal made by the TBA last year.

Lewis said a TBA Task Force encountered some of the same problems that DeBerry’s committee heard testimony about.

“One thing that we found in studying this was that the use of guardian ad litems varied dramatically from one part of Tennessee to another,” Lewis said. “We hope that one of the good things that come from this rule will be a more uniform approach to the appointment of guardian ad litems and a little more guidance to the bench and the bar on how they are to be used.”

Memphis judges tended to appoint GALs more than judges in other parts of the state. But Lewis said there were other parts of the state where judges included GALs with about the same frequency as Memphis judges.

“One thing that we learned in the process is just how diverse the process was from one part of Tennessee to another,” Lewis said.

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