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Guiding the Guardians

A group of Missoula parents steps forward to change the face of custody battles in Montana

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Vincent Bray, 25, sits between his mother and sister on a light-colored sectional in a two-story house outside Lolo. Bray's two daughters—ages 4 and 2—tear through the living room every few minutes, ignoring the fact that it's almost bedtime.

Bray served nearly a year as an Apache helicopter mechanic at Balad Airbase in Iraq. He would have served his full tour, but says his then-wife—whom he'd been with since high school—began having problems caring for their children. Bray received a hardship discharge and returned home, only to face a difficult divorce and months of troubling custody disputes.

At first it looked like Bray might get full custody of his daughters, he says. But when a district court judge appointed a guardian ad litem (GAL) to the case, Bray felt he'd left one war and entered another.

Bray contends the GAL assigned to his case ignored sentiments that he get full custody. Instead, joint custody—the state's preference in divorces—became the desired result.

"I can't say that it's just been hard for me," Bray says. "Since I came home from Iraq, I've lived here and everybody in this family in some way, shape or form has dealt with trying to do the amount of work it takes to get through this."

Bray now lives with his parents, splitting his time between a job at Sherwin Williams and helping his dad make woodworking tools in a shop across the driveway. He's taking 18 credits at the University of Montana, but legal fees over the last year and a half have exhausted the money he made in the armed services. He says his only solace comes from time with his daughters.

The court continues to haggle over Bray's case. He currently has full custody of the girls, but says it's taken a year to get there and he has no guarantee of how long the situation will last.

Many with similar tales of expensive and lengthy courtroom battles believe part of the problem lies in Montana's preference to award both parents equal custody. But it's the issue of GALs—not joint custody—that prompted local parents disillusioned by the system to step forward.

Late last year, several affected parents met at the Missoula Public Library to share their stories and offer support for one another. What began as a simple support group rapidly snowballed into a grassroots attempt at altering the rules—or complete lack thereof—pertaining to GALs in Montana. Montanans Supporting Guardian Guidelines (MSGG) has since reached out to psychologists, University of Montana faculty, local legislators and the governor's office for assistance in addressing the flaws in the system.

Few members were willing to share specific personal anecdotes, admittedly full of heated he-said, she-said fighting. All expressed fear of legal retaliation in ongoing court disputes if they went on the record. But those involved with MSGG unanimously agree about speaking out on one point: GALs in Montana are highly unregulated, and that needs to change.

Montana Code Annotated (MCA) outlines a GAL's role in the court system as an individual appointed to "represent the interests of a minor dependent child with respect to the child's support, parenting, and parental contact." The legal statute lists no required training, no standard for qualifications and no guidelines for how GALs should carry out their duties. A GAL "may be an attorney," MCA states, but the code offers no further direction for who should serve as a GAL.

Some training in court procedure and family issues is offered through Court-Appointed Special Advocate (CASA) programs–county-based nonprofits funded largely through grants, county money and private donations–but these programs are strictly voluntary. GALs are free to work in private practice or on a volunteer basis under the limited description of the MCA. The district court in Missoula maintains its own list of 46 active GALs in the county, many of whom are also attorneys.

Despite the job description's vagaries, the code grants GALs access to a wealth of private information. They have nearly unlimited 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" in the course of their investigations. GALs then use information gained from interviews and documents to file recommendation reports "concerning the child's support, parenting, and parental contact."

Vincent Bray holds his youngest daughter during a birthday party at his parents’ house outside Lolo. Bray left Iraq on a hardship discharge in 2007, only to face a divorce and a lengthy and costly custody battle for his two daughters. Stories like his helped motivate a grassroots group of parents to affect change in Montana’s flawed guardian ad litem system. - PHOTO BY CATHRINE L. WALTERS
  • Photo by Cathrine L. Walters
  • Vincent Bray holds his youngest daughter during a birthday party at his parents’ house outside Lolo. Bray left Iraq on a hardship discharge in 2007, only to face a divorce and a lengthy and costly custody battle for his two daughters. Stories like his helped motivate a grassroots group of parents to affect change in Montana’s flawed guardian ad litem system.

Investigations can take weeks, even months, before the GAL files a report. Typical recommendations for parenting plans can range from suggested visitation schedules to mandated psychiatric evaluations of parents. GALs even have the authority to remove children from parents in emergency situations.

Parties wishing to file a grievance against a GAL carry the burden of proof that the GAL has failed to execute his or her duties. In the end, the GAL reports directly to a district judge. And therein lies the largest point of contention.

"I think everyone will tell you there are good guardians and there are bad guardians," says Simon Fickinger, an active GAL in Montana's Fourth Judicial District Court, which covers Missoula and Mineral counties. "But a bad guardian has a lot of power to get in there and really mess things up. It's a dangerous kind of thing...Anybody who has a judge's ear, so to speak, has a lot of power. And a guardian ad litem has exactly that."

Since becoming a GAL in 2003, Fickinger's handled between 75 and 100 cases, many pro bono. His work in the Fourth Judicial District Court drew so much attention that the 21st Judicial District Court—based in Hamilton—asked him to serve there as well. He accepted, and has served in Hamilton for several years. In Fickinger's experience, the GAL's role as protector is anything but light.

"Most parents are experts in their own kids because they live with them and have for a long time," Fickinger says. "Most of them aren't experts in child development—in things like attachment and things that are very important—and can very often without meaning to ask for things or try to do things with their child that could actually have a detrimental effect on the child and be dangerous for their emotional wellbeing...At core, that's the job of the guardian ad litem, to testify in court about the best interests of the child."

Attorneys and psychologists familiar with custody cases claim Montana has a predilection for awarding joint—or 50–50–custody unless outstanding circumstances dictate a more customized approach. A GAL typically enters a custody case when a judge determines an independent investigation is necessary to draft a parenting plan. They remain active with the case until dismissed by the judge. Cost of the GAL is split between the mother and father.

From 2003 to 2009, Montana's judicial system appropriated funding to cover GAL appointments for poor families. The Legislature voted to revoke the funding early this summer, and state coverage for GAL costs officially halted in July. Fickinger says GALs and families were given only a few weeks' notice about the change. The state then gave GALs two choices: continue pro bono work with poor families or drop the active cases. (Fickinger refused to drop a single case.)

Fickinger says he understands the sensitivity of custody battles; he has a teenage son and daughter. He received his undergraduate degree in psychology from Messiah College and his master's in clinical psychology from Millersville University, both in Pennsylvania. His continued work as a conflict mediator keeps him focused on issues of child and family psychology.

While Fickinger appears qualified for the position, William Stratford, a clinical psychologist in Missoula, contends Montana's GAL system is, overall, a "crap-shoot of quality." The process is lengthy and the added costs to families are often enormous. And if the state's legal conclusion is 50–50 custody from the outset, he points out, "Why should it take months and months and years to resolve these situations?" He agrees with the need to protect a child's best interests, but questions the state's current ability to do so.

"Conceptually, that's a huge point," Stratford says. "A guardian ad litem that stands back and represents the interests of the child is certainly important. Making sure the child is protected is how the system started. But I think that what got morphed was the level of involvement on the part of the guardian ad litem...They go out and do evaluations and file reports. That's the job of a professional. I think the role of protector has morphed into the role of evaluator."

Stratford, who has worked in the field of child and family psychology for 35 years, contributed to GAL investigations in regard to mental health information for 15 years. But a few years back, his frustrations with the unregulated nature of GALs came to a head. As a private psychologist, Stratford now refuses to work with any GAL, regardless of their individual reputation.

"People have tried to address the standardization question before, and what shocks me is that this has been allowed to go on so long," Stratford says. "It's such a glaring problem."

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