When parents are in the midst of a nasty divorce, courts in Virginia may appoint a lawyer to represent their kids.
It’s an important job, but some of these attorneys fall short and efforts to improve performance have failed.
This story starts with a woman we call Karen. To protect the privacy of her kids, we’re using a pseudonym. She spent seventeen years as a stay-at-home mom. During that time she and her spouse grew apart. Karen, for example, was increasingly involved with her church and wanted the kids to attend a Christian school.
Their father objected, and when the couple divorced, a lawyer – known as a guardian ad litem -- was appointed by the court to represent the children. “My daughter at the time was trying on different hats of her identity, and thought that she was transgender," Karen says. "The guardian wanted me to go along with that and completely affirm it, which I think is a very polarized viewpoint.”
The guardian also insisted the child see a therapist – one Karen did not approve. “I was asking for someone at least with a PhD and at least ten years of experience. Instead she chose someone with ideology I just didn’t agree with.”
Karen tried to convey her views to the guardian, but she says, she got no respect. “I mean I can show you my e-mail records. I was hit more with out-of-office replies than any other response at all,” Karen says.
Others, like Winchester family lawyer Larry Vance, see guardians doing a marginal job. “There are horror stories all over the state," Vance notes. "Anecdotally I’ve had cases where the guardians ad litem conducted their investigation the day before the trial.”
Done right, the job is demanding.
Lesley Haley has served in the role for five years – visiting homes, speaking with schools, doctors, social workers – anyone who might help her craft a plan to protect kids after a divorce. “You’re collecting all kinds of reports and reading all kinds of information, so it can be pretty time intensive. Sometimes you’re on a Sunday making a home visit, and it can be emotionally draining,” according to Haley.
And for all that effort, the pay is relatively low, making it difficult to attract top people to the job. Haley loves the work but must balance it with cases that pay more. “We get paid $55 an hour for out-of-court time, and $75 an hour for in-court time. The average billing rate in central Virginia is probably $250 for a lawyer. In Northern Virginia it’s probably closer to $400.”
Unhappy parents – like Karen – can ask the court to replace the guardian with someone else, but Richard Garriott, president of the Virginia Bar Association says judges rarely do. “The request comes fairly frequently, because someone’s always unhappy on one side or the other,” Garriott notes.
Training for the job is minimal – an eight-hour course and working with a mentor on two cases. Garriott says mentoring time should probably be increased. “There are so many young lawyers coming out that just have not done it enough, and there are a lot of lawyers now that are not going into law firms. They’re going into solo practice, and they’re not having that mentoring opportunity.”
Virginia’s Supreme Court did appoint a task force to find ways of improving the performance of guardians, and State Delegate Chris Collins has introduced bills to reform the system. He proposed, for example, that guardians put their recommendations in writing and report on how much investigation they’ve done. Some judges already require that, but others don’t – and in any event the measure failed. “The guardians don’t like doing them. The courts don’t like getting them. There’s an additional cost to it, so by and large there is no written report,” Collins admits.
And Collins says judges from rural areas opposed the bill -- unwilling to do anything that would make the guardian’s job more difficult. “You have some jurisdictions where there is only one person who’s willing to be a guardian ad litem. That person says, ‘This is how I’ve done it for 30 years, and if you make me change I won’t be a guardian ad litem,’ and the judges say, ‘Well now we’re going to be without a guardian ad litem!’"
Still, he plans to propose reforms again during the next legislative session.
This report, provided by Virginia Public Radio, was made possible with support from the Virginia Education Association.
