Custody Battle Costs Are Focus of Task Force
Hector Morera is a 46-year-old father of two from Glastonbury who is immersed in a four-year-long divorce proceeding and custody dispute. Like 85 percent of Connecticut parties in custody disputes, he is representing himself.
But even though he has no lawyer, he nonetheless had to dip into his retirement savings because the judge in his custody dispute appointed a guardian ad litem (GAL) to represent the interests of his minor children and make recommendations to the court about visitation, custody and other issues. A guardian ad litem may or may not be an attorney. Both lawyers and laymen must be trained and certified before acting as GALs.
Morera said the guardian ad litem alone has cost him $30,000.
He and other parents around the state and across the nation have been complaining for years about the costs of divorce and child custody cases. Some go as far as to allege that family court systems are corrupt, and that judges are in cahoots with lawyers, guardians ad litem and other professionals to profit from personal hardships.
In an effort to get a handle on the issue, state lawmakers passed a bill in the last legislative session creating the Task Force to Study Legal Disputes Involving the Care and Custody of Minor Children. The group will look at a variety of issues, including legal expenses and the role of guardians ad litem. The task force just began meeting in October and will continue to do so through the beginning of the next legislative session.
"We're trying to make sure we are understanding the problem, if there is one," said Thomas Weissmuller, a former trial judge in Washington state, who is a member of the task force. "In the end, we have to leave to the legislature the task of formulating the law. All we can do is look at the problem and offer recommendations."
Weissmuller acknowledged that some of the guardians ad litem fees that parents claim to have paid are outrageous, but he is hesitant to rush to judgment.
"When you approach anything that involves a legal fee you have to understand the context of the fee," said Weissmuller.
He said if the panel discovers that there are law firms "using a mechanism" to stress families financially, members will make recommendations for changes to court and ethics rules.
Peter Szymonik of Glastonbury, who has a legal background and has gone through a custody dispute himself, said the economic crisis at the end of the last decade led to the rise in guardians ad litem costs. For instance, Szymonik said that before the recession, the fee for guardian ad litem services was typically in the $3,000 to $5,000 range.
With law firms looking for new revenues, he said, fees have skyrocketed so that a $20,000 to $30,000 payment is not unusual.
"No one can afford a family law attorney, let alone hire a guardian ad litem," said Szymonik, a former director of technology and member of the executive board of Cummings & Lockwood. "What they're doing is milking the parents that can pay for everything they're worth."
Further, he said, many parents see little interaction between the guardian ad litem and the child, and wonder what they are paying for. He credited social media for bringing the issue to the forefront.
"They trade stories and learn, 'Hey I'm not the only person this has happened to,'" said Szymonik.
While some parents believe they are getting ripped off, lawyers have a different perspective.
Justine Rakich-Kelly, executive director of Connecticut's Children's Law Center, has heard both sides of the debate in her professional role. She said parents think the lawyers and guardians ad litem are bankrupting them, while the professionals think the parents are the problem.
She noted that many custody cases include psychiatric evaluations for either a child or a parent, which can cost over $10,000. "There are very few professionals who can do a very good forensic custody evaluation," said Rakich-Kelly. "It tends to be a lot of the same people."
And that fuels the perception, she said, that it's a small clique of professionals—whether it's psychiatrists, guardians ad litem or lawyers—who are taking advantage of parents by charging exorbitant rates.
Meanwhile, she said attorneys and guardians ad litem feel that fees are being driven up by parents who have become "conflict addicted" and won't let go of long custody battles.
"So the question is: Who is at fault for the spiraling? The parents think, 'Oh my God, you're making us do all these things and bankrupting us," said Rakich-Kelly. "And lawyers think, 'We are trying to work out agreements and just can't do it when parents won't compromise.'"
She added, "The parent doesn't see their own role in the problem. They go off about their crazy ex-wife or husband. The guardian ad litem is trying to help the family restructure and not in a way that's going to completely ruin the children. It's not easy work, I'll tell you that."
Gaetano Ferro, a family lawyer in Darien who has chaired the Connecticut Bar Association's Family Law Section and served as president of the American Academy of Matrimonial Lawyers, argues that parents most often drive up costs in custody battles.
"Parents who are complaining are the parents who are fighting about custody," said Ferro. "If they resolved custody in a reasonable fashion, there wouldn't be GALs and fees to fight about and argue about. Most of the custody fights in Connecticut are not fights between two good parents and usually involve one parent who has significant problems."
Ferro said a parent who objects to a guardian ad litem's fees can request a hearing before a judge. He said he has heard of cases where a judge has failed to award fees to a GAL. As for overcharging, he said: "Sure, it can happen. But it's not prevalent."
Ferro believes the same people complaining about GALs are also the ones complaining about attorney fees.
"Mediate, negotiate, and then it won't cost as much," he said. "If you're reasonable [during custody proceedings], you have less to fight about and you get charged less."