GALs Gone Wild - Part 1 of 2

The guardian ad litem (aka the law guardian). The concept of the GAL started in dependency and neglect cases or child abuse cases where actions by the state were taken against the child’s parents, and someone was actually needed to legally look out for the child. However, somewhere along the way the lines got blurred and many judges in divorce cases (particularly in Shelby County, hence “the Shelby County way”) started routinely appointing GALs. Of course, that is the lazy judge’s way out of deciding a case.


Of course, in Shelby County, Tennessee, the attorney that is appointed as GAL, and how much work the GAL does, really depends on the finances of one or both of the parents. There are several law firms that do mostly GAL work; of course, they only accept appointments where at least one of the parents has significant resources. When they accept those appointments, they make sure they do a significant amount of work to milk the case for as much money as they can.

In Andrews v. Andrews (the link is attached on the FB page), Judge Kurtz (from outside Shelby County), as described by the Tennessee Court of Appeals, made some very candid observations about the use of GALs and attorney ad litems (AAL) in Shelby County. He stated:

The Court notes that the total cost of attorney’s fees in this case for the parties’ multiple and successive lawyers, guardian ad litem [S. Denise McCrary] and attorney ad litem [C. Suzanne Landers] will be over $800,000, and perhaps as high as $1,000,000. Such cost is a mark of the failure of the legal system to effectively deal with and minimize the emotional and financial conflicts inherent in ending the parties’ marriage.

The trial court commented on the “weighty” roles in the litigation of both the GAL and the AAL, contrary to the normally “circumspect role” of attorneys appointed for the benefit of a child in a custody dispute. It noted, however, that the issue of the fees for the GAL and the AAL had been reserved for later.
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At the outset of the order, Judge Kurtz outlined the roles of a guardian ad litem and an attorney ad litem, as discussed in Toms v. Toms, 209 S.W.3d 76 (Tenn. Ct. App. 2005).23 Quoting Keisling v. Keisling, 196 S.W.3d 703, 730 n.11 (Tenn. Ct. App. 2005), Judge Kurtz also discussed the discretion afforded to a guardian ad litem, and the problems that arise when a guardian ad litem “undertakes tasks or assumes a role that is overly-expansive, not useful, or otherwise inappropriate.”

Summarizing the law on such guardians, Judge Kurtz stated: None of the case law . . . gives the GAL authority to be a mediator, ombudsman, special master or a mini judge. The GAL is only to protect the child’s interest and gather and present sufficient facts for the court’s consideration: nothing more or nothing less.

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 one of my previous cases, Ghawji v. Ghawji, Judge Donna Fields appointed and re-appointed the GAL, Suzanne Landers, for various issues that Judge Kurtz states is “authority beyond the parameters set forth in case law”, and for which Landers kept running up unnecessary charges and billing my client.

And what type of work does a GAL do? Well in the Anna Mae He case, the GAL, Kimbrough Mullins, read a book about China, and then magically became an expert on Chinese culture. From the Tennessee Supreme Court’s opinion (the link is attached on the FB page):

The guardian ad litem testified that she did not recommend visitation because “the status quo was that the child had not seen her biological parents in a number of months, I didn't believe that throwing the child into something different than the status quo was necessarily in her best interest.” The guardian ad litem continued to oppose visitation and reunification with the parents throughout the proceedings. She believed that A.M.H. was attached to the Bakers and considered them to be her parents, although the guardian ad litem had never seen A.M.H. with her biological parents. She further stated that she had read a book about Chinese girls being placed in orphanages and consequently was concerned that the parents wanted to return to China:

From the very beginning of the case, it was very clear to me that [the parents’] intention was that if the child were returned to them, they wanted to go back to China. They have never said anything different than that. They have always said that when this case is over they would like to take her back. . . . I honestly can't tell the Court today I know to an absolute certainty what kind of life she would have there. This book that I read caused me some concerns.

My favorite part of the Anna Mae He opinion by the Tennessee Supreme Court is:

The attorney ad litem and guardian ad litem are hereby ordered relieved of any further participation in proceedings concerning A.M.H.

End of Part 1.