Custody Law Turmoil
Harriet E. Lulie, Attorney at Law
Usually the inner workings of the legal system are hidden from the public by a fog of confusing terms and complex facts; normally of interest only to those directly involved. Then there are those moments when the fog abruptly lifts.
The winds of sudden change blew the fog away recently back on January 18, 2006 when the Maryland Court of Appeals, our highest state court, came down with a landmark case that reversed over a decade of the routine appointment of attorneys to act for judges in child custody cases.
The Court declared that trial judges had been appointing those attorneys since 1993 without having any authority to do so. The fall out from that explosion has lead to emergency legislation filled as House Bill 700 and Senate Bill 664, which proposes to create a type of "super lawyer" and improve what had been the status quo. That this is a bad idea is being hotly debated in Annapolis and the debate is revealing the horror stories that had occurred but been concealed by a fog of "normal" legal process.
The legislature is holding expedited hearings on this proposed statue which will strip minor children of their rights as clients that the Court of Appeals so recently restored to them.
Why is this being treated as an emergency? Because if the "best interests" attorney is required to be loyal to the child then the attorney can no longer be the judge's eyes and ears and that attorney will no longer be a "super lawyer" whose first duty is to the judge instead of to the client.
The horror stories that have resulted as the result of the Court of Special Appeals giving the Circuit Court judges the power to appoint attorneys to act for the judge instead of the child are now being recounted publicly as reported in The (Baltimore) Sun's February 21st story "Families oppose lawyers' immunity" by JoAnna Daemmrich.
Children have suffered and are still being harmed as a direct result of this "super lawyer" system. In my own practice I represented a father whose daughter lived in a home where her step-father was violent and abusive towards his son (from a prior marriage), while the stepbrother was part of the little girl's household. This man was a professional who was well respected in his field, but the violence was documented; domestic violence is no respecter of position.
The little girl's court appointed attorney refused to interview the step-brother [who was a teenager] and refused to make any report to the judge about the violence, even after the boy was removed from the home during the pendency of a court action filed by his mother.
After many, many months of expensive litigation I was able to force the judge to allow me to take the testimony of the step-brother. When the trial judge heard that compelling testimony, the girl was removed from the home.
Amazingly the child's attorney, who had shown no interest in investigating these claims of violence, even after hearing the uncontested testimony of violence in the home, still refused to make a report to recommend that the child had to be removed from this home.
Because he did not like the child's father.
The father was angry at the delays and the emotional harm that his daughter had suffered and had loudly told the attorney how he felt about it. Clearly in this case the Guardian ad litem (GAL) never represented his clients' desires and even did his best to prevent the Court from ever hearing about them.
It seems obvious that a lawyer should be professionally responsible to his (or her) clients for the lawyer's actions. However when we go down the rabbit hole of contested custody cases, common sense tends to disappear.
In 1993 the Court of Special Appeals created the super lawyers (GALS) representing minor children in Leary v. Leary, 97 Md. App. 26, (1993). The Court of Appeals on January 18, 2006, in Fox v. Wills, COA 1-18-2006, held that this role does not and has never existed. The Court of Appeals finding makes clear that there is only one kind of attorney, and that attorney owes total loyalty to their client. In the case of Guardians ad litem that client is the child not the judge.
For the last decade these super lawyers, the Guardian ad litem, had virtual immunity from lawsuits. That ended on January 18th.
However, some Circuit Court judges are saying that the Court of Appeals did not actually change anything and have decided for the moment to continue as if the ruling had never happened. They may continue doing business as usual despite the new case law; they won't be sure they are right until someone appeals a case and it progresses through the appeals process.
That might take months to years before another case comes down saying either yes we really mean it or no we didn't really mean it, it just looked that way. Meanwhile it is a foolhardy attorney who acts as if nothing has changed because if they fail to honor their client's wishes they may well end up being themselves sued.
There is no doubt that the lack of Guardians ad litem will mean a lot more work for judges; no longer can the judge rely on the "condensed version" of reality in the form of a report prepared by the Guardian ad litem , a report on which the judges did rely to a great extent.
The emergency legislation proposed would restore this dangerous situation where these "super lawyers" will have the right to talk to anyone, then to give the judge a report. That report will be evidence, the judge will rely on it, and it's recommendation as a fundamental part of the judicial decision making process.
But parents will not have the right to question the accuracy of the report because the person writing the report, the judge's attorney, will not be allowed to testify. Any other citizen has the due process right to force the witnesses to take the stand and to answer questions.
This legislation both requires the judge's attorney to make a report and then forbids the attorney from testifying. Why? – To protect the attorney from ever having to provide testimony under oath.
This is an extraordinary alteration of an attorney's professional ethics and is just a bad idea; in seeking to protect the lawyers acting as Guardians ad litem, it cements a situation where abuse will go unanswered and without remedy.
The fact is that over the years many Guardians ad litem took positions that ignored what the minor children said and wanted. Even when the children were mature and well informed the Guardian ad litem could and often ignored the child, to point of telling the judge to ignore the child's expressed opinions and statements as well. They did this with impunity knowing that there was no recourse available against them.
The emergency legislation proposed would eliminate the right of the minor child to have an attorney who must respect and listen to the child. This is the direct result of giving Guardians ad litem the immunity of a judge but not requiring them to be impartial or even competent.
This would be a disaster because it would protect biased or antagonistic Guardians ad litem acting in bad faith from ever being sued. Under current law, immunity is a protection granted to a judge only after a rigorous judicial selection process and the appointment by the governor.
This proposed legislation will grant this extra-ordinary right to ordinary attorneys without any qualification other than that a judge likes them enough to appoint them; often because they share similar philosophical or political viewpoints.
Most Guardians ad litem have been ethical and honest; it is a difficult job which usually makes one parent unhappy. But there have been too many Guardians ad litem that have played favorites, siding instinctively with one side due to gender or because one parent was represented by a lawyer who is a personal friend.
It is difficult to imagine the frustration of a child who tells their lawyer that one parent is dangerous or unreasonable only to have that lawyer completely ignore them and then tell the judge that parent should have custody.
Any private attorney who challenges the Guardian ad litem is really challenging the judge's authority. Judges do not – as a rule – encourage or even tolerate such challenges. Indeed the judges have come to rely on these super lawyers to discourage litigants from taking the risk of challenging the judge's attorney. This is very useful to the judges in the short term, but this process is eroding the public's faith in the fairness and impartiality of our Judges. This loss of respect for our judges and in the legal system is very damaging to our long term social peace.
The (Baltimore) Sun reported on February 22 the statements of Montgomery County Circuit Judge Ann Sundt that these attorneys "act on her behalf;" that when the judge does not have these special lawyers then the judge has to listen to a lot of testimony.
Hearing the case and listening to the testimony is the essence of due process. The basic rules of judicial ethics require that a Judge be ' "impartial" which denotes absence of bias or prejudice in favor of, or against, a party or class of parties, as well as maintaining an open mind in considering each issue that is or may come before the judge.' [text in italics is quoted from Rule 16-813 et seq. Maryland Code of Judicial Conduct] It is not reasonable to expect a judge to be impartial in dealing with the reports made to her by an attorney hired by her.
Judges have the power to hire experts and hear the expert's report, but the expert must then testify as a witness under the usual rule of due process. "(e) A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding if the judge: (i) makes provision promptly to notify all of the parties as to the expert consulted and the substance of the advice; and (ii) affords the parties reasonable opportunity to respond." Judges do not need super lawyers to have access to reports.
The usual rules absolutely forbid a judge to hear a case presented by a former business partner, as the judge cannot be impartial. How then can the judge be impartial when dealing with an attorney that the judge has hired for the purpose of working for the judge in a contested custody case?
In sum, there is no need for the legislature to create a special class of "super lawyers" who are not required to be loyal to a client, who are in fact working for the judge and who get immunity from being sued by their clients.
Attorneys were willing to represent children before 1993, before the Court of Special Appeals bypassed the legislature and invented the "super lawyer" role of Guardians ad litem or best interests' attorney.
There is no doubt they will be willing to do so again. Custody cases are contentious, and parents hate to lose, people are angry, angry with the private attorneys, angry with the judges and angry with each other. That is not an emergency. That certain attorneys are only willing to represent children if given an extraordinary immunity from malpractice is not an emergency.