GALs in child custody cases pretty much operate with impunity. As I stated in My Story: For the Love of a Child - Part 1, the Tennessee Court of Appeals held that GALs are entitled to “absolute quasi-judicial immunity.” See Winchester v. Little, 996 S.W.2d 818 (Tenn.Ct.App. 1998) (lawsuit by me against then Jackson attorney and now Madison County Juvenile Court Judge Christy Rauchle Little). Such immunity protects people who make knowingly false statements, even if they make them with malice.
I once heard two attorneys in Shelby County discussing a child custody case in the doorway to a courtroom. One said that since your client has more money than mine, I guess the GAL is going to recommend that your client get custody; they then chuckled. The way attorneys in Shelby County think regarding GALs just accentuates Judge Kurtz’s comment in Andrews v. Andrews:
Commenting specifically on the affidavit opining on the common practices and expectations of the local trial courts [Shelby County] and the initial trial judge [Judge Donna Fields], Judge Kurtz observed that it “speaks to an expectation which does not appear in any court order and expresses a role for the GAL and AAL beyond that authorized by the legal authorities.” Judge Kurtz recognized that a local “legal culture ha[d] developed . . . in which the GALs have assumed authority beyond the parameters set forth in the case law,” but added: “[W]hen push comes to shove the law must trump culture.”
In the case of Malmquist v. Malmquist, I filed a Motion to Disqualify Guardian ad Litem (the GAL was Gina Higgins), which I am posting verbatim below due to the atrocities involved. The judge, Jerry Stokes, denied the motion.
Defendant / Counter-Plaintiff Danielle Malmquist, by and through counsel, moves this Court to disqualify the Guardian ad Litem in this cause, and as grounds thereto, states as follows:
1. The Guardian ad Litem in this cause, Gina Higgins (“Higgins”), was appointed without any input from Defendant / Counter-Plaintiff.
2. The Plaintiff in this cause is a pilot with FedEx, and his job title is Assistant Chief Pilot, and reports to Paul Castle, who is the President of West Coast Regions.
3. When a local news station was preparing to air a news segment regarding issues in the divorce and custody dispute between the parties, officials from FedEx called the news station in an attempt to stop the station from airing the story, and threatened legal action. Further, this Court, upon recommendation of Higgins, sealed the divorce proceedings, but subsequently unsealed the proceedings.
4. Higgins is the current President of the Ben. F. Jones Chapter of the National Bar Association (“Jones Chapter NBA”). A past President of the Jones Chapter NBA is Mary Beard, who works for the FedEx Legal Department. The 2005 President of the Jones Chapter NBA was Edward L. Stanton, III, who is also an employee of FedEx. FedEx is a major contributor to the National Bar Association, and FedEx has a link on the National Bar Association’s website, offering member benefits. Accordingly, Higgins has a pecuniary interest, as President of the Jones Chapter NBA, as well as has personal and professional dealings with members of FedEx’s legal department. Further, FedEx, by contacting the news station and threatening legal action, has placed itself squarely in these proceedings on behalf of the Plaintiff / Counter-Defendant.
5. On or about January 6, 2007, former counsel for Defendant / Counter-Plaintiff took the deposition of Higgins. Higgins blatantly refused to answer questions regarding Higgins personal relationship with the Court. Specifically, the testimony was:
Q. I asked you a question yesterday but I guess I need to have it confirmed on the record under oath. As I understand it, there’s been no prior relationship between you and Judge Stokes; is that correct?
A. I’ll answer that question if y’all tell me who gave y’all this information.
Q. Ms. Higgins.
A. I’ll answer that question if you tell me who suggested there was a relationship between myself and Judge Stokes.
Q. My client is the one who –
A. Where did she get her information?
Q. I am the one taking this deposition today.
A. Then I’m not going to answer it.
Q. You’re refusing to answer the question?
A. Absolutely.
Q. Based on what grounds?
A. I’m just not going to answer.
Q. Well, then I’ll just have to cite you for contempt.
A. Please do.
Higgins is a licensed attorney and an assistant divorce referee with the Shelby County Circuit Court. Higgins is well aware of the rules regarding discovery, and blatantly refused to answer questions that are discoverable, in this instance, regarding any possible bias or prejudice between Higgins and the Court.
6. Based on the foregoing, there exists a conflict of interest, as well as bias or the appearance of bias, on the part of Higgins, all of which have been in existence since Higgins’ appointment. Further, Higgins has refused, without proper objection, to answer questions at her deposition.
7. Further, Higgins has demanded payments from Defendant / Counter-Plaintiff, yet refused to provide an itemized billing. Further, regarding a request for a billing statement, Higgins stated in an email dated August 17, 2006, as follows:
As to a billing statement from me, why do you need one. I have not taken the time to prepare a detailed bill in this case. I am not inclined to waste my time. If you agree to and send me a check (for no less than $4,000), I will take the time to submit an invoice. You should know that it will reflect a lot more than $4,000 or $8,000 for the work done in this case. Otherwise, I am not going to waste my time. (see email, attached as Exhibit 1.)
Unfortunately for the children who are the subject of child custody disputes, the actions depicted in this and the previous posting are not exceptions, but rather they are examples of what goes on day in and day out in child custody cases. The GALs, and the judges that appoint them, must be reined in.
End of Part 2.
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