Montana Social Workers state “Guardians ad litem need more supervision in divorce cases”

A letter to the editor published in the Billings Gazette earlier this week was critical of Montana’s regulation, or lack thereof, of guardians ad litem in divorce or parenting proceedings.

Written by several Masters of Social Work students, the letter set forth a number of problems that result from the severe lack of regulation by Montana courts.  Specifically, the authors were critical of involving a guardian ad litem (GAL) who stays involved for a number of years and the parents remain on the financial hook for the GAL’s work.  It seems once a GAL is involved, there is no way for the parties to get the GAL out.  The result is often astronomical GAL fees, along with a parties’ individual attorneys’ fees.

Montana statute allows for appointment of a GAL in divorce or parenting cases.  The statute specifically states the following:

M.C.A. 40-4-205:

(1) The court may appoint a guardian ad litem to represent the interests of a minor dependent child with respect to the child’s support, parenting, and parental contact. The guardian ad litem may be an attorney. The county attorney, a deputy county attorney, if any, or the department of public health and human services or any of its staff may not be appointed for this purpose.

(2)The guardian ad litem has the following general duties:

(a) to conduct investigations that the guardian ad litem considers necessary to ascertain the facts related to the child’s support, parenting, and parental contact;

(b) to interview or observe the child who is the subject of the proceeding;

(c) to make written reports to the court concerning the child’s support, parenting, and parental contact;

(d) to appear and participate in all proceedings to the degree necessary to adequately represent the child and make recommendations to the court concerning the child’s support, parenting, and parental contact; and

(e) to perform other duties as directed by the court.

(3) The guardian ad litem has access to court, medical, psychological, law enforcement, social services, and school records pertaining to the child and the child’s siblings and parents or caretakers.

(4) The court shall enter an order for costs and fees in favor of the child’s guardian ad litem. The order must be made against either or both parents, except that if the responsible party is indigent, the costs must be waived.

Essentially the statute provides only provides for the GAL’s duties and how they will be paid.  Though GAL’s play an important and often integral role in the divorce process, the lack of regulation is a bit troubling. If an attorney is involved as a GAL, it is unclear if they are bound to the same rules and responsibilities they would be bound to if they were acting as a child’s attorney.  It appears to be a small distinction, but can have major consequences, particularly when parties are unhappy with the GAL or have a dispute about fees.

For more information on how a GAL could be used in your divorce case, contact an attorney.  If you would like to read the full letter to the editor, you can find it here.