CT’s contentious custody cases: Symptoms of flawed family courts, or outliers?

The stories are striking: Divorced fathers who haven’t seen their children in years, people saddled with six-figure legal bills from custody cases, parents who feel powerless and victimized by the professionals charged with helping to determine how much time they spend with their children.

To the parents involved and some who’ve followed their cases, the situations are symptomatic of a family court system in dire need of overhaul, one they believe gives lawyers and those appointed to represent children a financial incentive to make cases drag on for years at high financial and personal costs.

But others involved in the system worry that the alarming stories will skew lawmakers’ perspectives. They say the lengthy, contentious custody cases represent a small fraction of family court cases, and are more likely a reflection of the people involved than the system’s fault. They favor more modest changes to rein in costs and expedite contentious cases, but say that wholesale change could undermine the system’s ability to look out for children caught in the middle.

The highly charged, emotional dispute over Connecticut’s family court system is now before state legislators, who are considering a measure that would make changes to the appointment process and, in some cases, the fees paid to those who represent children in some divorce and custody cases.

Sen. John Kissel, R-Enfield, said lawmakers have a challenging task: Figuring out how to address what appear to be abuses within a system in which more than 90 percent of cases are resolved without problems.

Critics of the system say the proposal doesn’t go nearly far enough.

“Parents, they are going through pain because the system is not working,” said Rep. Minnie Gonzalez, D-Hartford, a leading critic of the family courts. “We have to understand it’s a problem.”

A role for parents or a third-party?

One of the focal points in the controversy is the role of guardians ad litem, who are appointed to represent children in some divorce and custody cases.

Chief Court Administrator Judge Patrick L. Carroll III said guardians ad litem — often called GALs — are needed in contentious cases so the children don’t have to appear in court and be cross-examined by their parents.

In the 2012 fiscal year, Connecticut courts issued decisions in 14,159 divorces and 3,623 custody cases, according to the state judicial branch.

People involved in the system say most cases are resolved before trial, and often without guardians ad litem. But they say that having one can be critical in informing a judge who otherwise would have to decide between the conflicting accounts of two parents. In addition, some say, GALs can help calm conflicts and produce agreements.

But critics say guardians ad litem often take on a role that should be left to parents. They say some parents must tap into retirement funds or children’s college savings accounts to pay GAL fees, which can add up to tens of thousands of dollars or more.

And some say the way guardians ad litem are paid — billing by the hour, with no cap — gives them an incentive to prolong conflicts while leaving parents with little choice but to pay.

“We don’t need guardian ad litems, period,” Gonzalez said Monday during a Judiciary Committee public hearing, prompting applause from the audience.

The proposal the committee is considering would:

• Give parents a choice of five GALs if a judge wants one involved in the case.
• Require a judge appointing a representative for a child to issue an order spelling out the nature of the work to be done, an end date for the appointment and a fee schedule.
• Allow parties to a case to seek the removal of a GAL or attorney for a minor child.
• Require the judicial branch to develop a plan for calculating fees on a sliding-scale basis.
• Prohibit a court from requiring fees for a court-appointed GAL to be paid from the child’s college fund.

The ‘divorce industry’

Mark Sargent, one of a group of parents pushing for changes to the system, is among those who think the bill doesn’t go far enough.

“The whole system has to be thrown out,” he said.

Sargent wants the role of guardians ad litem to be limited to representing children who are wards of the state in juvenile or probate matters, or in cases when parents aren’t capable of representing the best interest of their children.

But if lawmakers won’t go that far, Sargent said, they should limit the hourly rate GALs can charge, specify what they can charge for, clearly define the guardian ad litem’s role and allow parents to sue GALs.

“I think that parents represent the interest of their children better than private individuals, particularly ones that have no oversight,” he said.

Sargent, an attorney who is now a stay-at-home dad living in Westport, is divorced and has sole custody of his three children. He said he doesn’t object to the outcome of his case, but to the process, which included a guardian ad litem who he said charged him more than $130,000 and was ultimately removed. Although he has concerns about his children’s safety, Sargent said the judge in his case won’t listen to him and instead defers to the guardian ad litem.

Many parents are afraid to challenge their children’s guardians ad litem for fear that it could lead to them losing their children, since the GALs can make unfavorable custody recommendations, he said.

And Sargent said that people with concerns about the system should not be dismissed as disgruntled parents.

“I can tell you that this is families in special situations,” he said. Often, he added, one parent or child has a serious mental or physical illness or addiction, or a child has special needs.

In cases that can’t be resolved without judicial intervention, Sargent said, families can be taken advantage of by what he and others call “the divorce industry.” He said judges feed into it because they rely on attorneys and guardians ad litem to help them manage their busy dockets and to help them avoid responsibility for potentially bad decisions — and the parents pay the bills.

It’s a view shared by other parents who have been involved in the system.

“The reason that this is finally coming to the forefront is that it happened to so many families that it hit that critical mass and we were able to find each other,” Sargent said.

Expediting cases

But others say the role of the GAL is critical to protecting the interests of children.

Kaylah Culp said she and her sister felt blessed to have an unbiased third party representing them during their parents’ divorce 14 years ago. She said in written testimony that she didn’t want to stay overnight with her father, when he drank heavily, but that her mother hadn’t been allowed to speak for her in court to make that clear to the judge.

If her father were still alive, Culp added, he might be one of the parents blaming the guardian ad litem system.

Justine Rakich-Kelly, executive director of The Children’s Law Center in Hartford, cited another case: A 6-year-old girl who was shot and killed by her father during a supervised visit in 1992. The shooting helped spur the creation of the law center, which provides GAL services to children from poor families.

“Maybe if there had been a GAL to represent to the court what they saw with the little girl and with the mother and the father and their interactions, there would’ve been a different kind of interaction,” she said, such as requiring anger management before any visitation could occur.

In extremely high-conflict cases, Rakich-Kelly said, many parents are “conflict-addicted.” Guardians ad litem can help mediate and see how the conflict affects the children and reach an agreement, she said, although some cases require going to trial.

Barbara Aaron, a Hartford divorce attorney, said it would help to create a complex custody docket or have contentious cases handled from start to finish by one judge so they could be expedited. That could also help address concerns about legal fees in cases in which one side is responsible for much of the conflict, requiring the other parent to also incur large legal and GAL fees, she said.

Aaron said it’s misinformed to suggest that lawyers and GALs have an incentive to prolong cases.

“The truth is nobody wants these cases to be tried,” or for a judge or GAL to make a decision about other people’s children, she said.

Aaron said parents involved in high-conflict cases who are critical of the system need to take responsibility for what happens in their cases and how it affects their children.

“The only thing you will get uniform agreement on by mental health professionals across the board is that conflict, high conflict in families is toxic, is awful for children,” she said.

“And parents, frequently under the guise of doing what’s best for their children, make them the casualties of their war because how much time they get [with their children] is more important than stopping the conflict, reducing the conflict or not being right, or the fight, or the vindication.”

The Judiciary Committee has until Wednesday to vote on its proposals to move forward this session.