Should a Guardian ad Litem (GAL) be allowed to mediate between parties, assisting in coming to agreements about custody and parenting time, and facilitating communication? The Minnesota Rules of Guardian ad Litem Procedure say no. However, Guardians often assume the responsibility of mediator, or facilitate back and forth communication between parties, voluntarily. Judges also frequently call Guardians to be present during mediation, which often results in the Guardian performing mediation or influencing the process.
Let’s start the discussion…What are YOUR thoughts on the role of a Guardian ad Litem? Should they perform mediation? And what should happen if a GAL violates the rules, and acts outside of their duties? Post your thoughts and experiences (use anon name to protect your identity) in the comments below!
In 2008, Hennepin County 4th Judicial District, Guardian ad Litem, Jamie L. Manning facilitated a mediation between my abusive ex partner, Martin and his attorney “Peter Banning”, and myself (at the time I had a pro bono attorney). I did not know at the time that Guardians are prohibited from facilitating a mediation, this was done with the full knowledge of Judge Redding. Ms. Manning took extensive notes on her own legal pad, which became part of my family’s file. However, the Guardian ad Litem program will not let a party view or copy their own file. In comparison, CPS records can be requested, and redacted for privacy.
A cheerful chime announced the silver elevator doors opening to the 5th floor of the Family Justice Center. I stepped onto the muted gray carpet, squared my shoulders and took a deep breath, it seemed every time I went to court, things got worse for my family.
In April 2006, I fled an abusive relationship with two traumatized children. My children both displayed behavioral and psychological problems, related to abuse. And both began to independently talk about abuse inflicted from their father. Still a toddler, my daughter was barely speaking but since I fled our home, her words tumbled out… “Daddy hit me”, “Daddy call me stupey (stupid)”… were common.
Martin threatened that he would take the children (direct quote) “so I know how it feels to be hurt” and in June 2006, he filed for sole custody. We had been in court ever since. I was steadily losing custody of both children to the abuser who had hurt them. At the time, Martin was a wanted fugitive with 3 active warrants, a lengthy criminal and civil history, a history of various addictions and carrying on a strange relationship with his first cousin Lisa Allis, who ran away from home at age 17 to live with him. Incredibly, while the children and I were homeless, and sleeping in our van or staying in shelters, Martin moved his teenage first cousin into our family home while we were still homeless.
I could not understand why Ms. Manning was favoring that Martin be given custody to the detriment of my children. Over a dozen documented allegations of child abuse had been made by my children, with reports from treating therapists, CPS and police. I am the fit, loving mom with no criminal or drug history. I had found stable housing. Had a stable job. And worked hard to re-stabilize my family. And yet, I was being criticized by the court, told it was wrong to get help for my children, and told not to speak about the abuse. Where is the justice in the Family Justice Center?
Brightly colored art decorates the white walls, paintings and drawings created by adults with developmental disabilities portrayed a world of hope, one I had never realized in the Family Justice Center. To the left of the hallway is the infamous Room 535, where my custody case had been held since 2006. Across from Room 535 is a row of windows facing the Minneapolis skyline. Skyscrapers of various heights zig zagged into the horizon like a child’s tower of building blocks. To the right of the courtroom is a narrow hall with small meeting rooms. Ms. Manning was sitting in one meeting room with Martin and his attorney, Peter Banning. Ms. Manning usually sat with Martin, in the private meeting room, and they walked into court together. Ms. Manning would sometimes run out to greet me but always with a motive. She would usually question me to gain information for the upcoming hearing; and was known to twist or distort my words and use them against me. Ms. Manning never asked about the children, she has an attitude like she knows what is best, and knows better than the parents. I sat on a green cloth bench chair waiting for my attorney. I pulled my Bible out of my bag and began to read my favorite chapter, the Book of Isaiah, gathering strength.
My attorney arrived and briefly spoke to Ms. Manning. He said it would be best if Martin and I could come to an agreement, and that Ms. Manning offered to facilitate. I was wary, knowing Martin often broke his word, and knowing that he still meant me harm, even if using my children to do so (domestic violence by proxy). Still, I agreed. What other choice did I have? I sat in one room, and Martin and Peter Banning in the other. Ms. Manning scuttled between the two rooms, her yellow legal pad in hand, taking notes. Ms. Manning made suggestions about parenting time, including suggesting how the time should be divided, and how to manage holiday time. Ms. Manning relayed messages from Martin to me, communicating what he wanted. And Ms. Manning drafted the proposed parenting time order on her yellow legal pad, and read the order into the record.
My attorney was hopeful, and I wanted to be also. I know that Martin is a game player, and the calm facade he shows to the world is not what is boiling underneath his easy smile, and smooth words. As I had predicted, there would be trouble. The custody agreement barely held up for a few months before we were back in court, and Martin was again seeking sole custody of both children, and again waging ridiculous false allegations against me. It seemed we were just going through the motions, making everything appear legit for what really was happening – a fit, loving mother was losing custody to a dangerous abuser.
— Emily Court, 2015
Also posting an e-mail to show, at another time, GAL Jamie L. Manning offered to facilitate a meeting with Martin and I, where she offered to help establish a summer visitation schedule, and facilitate communication between the both of us. Below this e-mail, I will include the Rules of Procedure mandating the responsibilities of a Guardian below.
I am sorry that I have been unable to contact you. I’ve had several emergency cases that I have had to deal with. I am glad that you and Martin are agreeing on additional parenting time. Maybe the three of us should meet and decide about an appropriate summer schedule. What is your work schedule like? Jamie
What is a Guardian ad Litem NOT allowed to do?
- Enforce a Court order. A guardian ad litem cannot make a party comply with a temporary order, but is responsible for notifying the Court when a parent does not follow a Court order.
- Act as a mediator between parties.
- Put any party’s interest ahead of the child(ren)’s interests.
General Rules of Practice, Appointment of a Guardian ad Litem
Rule 903.04. Other Roles Precluded Subd. 1.
Generally. A guardian ad litem under the supervision of the Office of the State Court Administrator shall not be ordered to, and shall not perform, the following roles in a case in which the person serves as a guardian ad litem:
- (a) custody evaluator pursuant to Minnesota Statutes § 518.167; or
- (b) parenting time evaluator; or
- (c) parenting time consultant; or
- (d) family group decision making facilitator; or
- (e) early neutral evaluator; or
- (f) mediator, as that role is prescribed in Minnesota Statutes § 518.619 and Rule 310 of the Minnesota Rules of Family Court Procedure; or
- (g) arbitrator or individual authorized to decide disputes between parties;
- (h) or parenting time expeditor, as that role is prescribed in Minnesota Statutes §§ 518.619 and 518.1751; or
- (i) substitute decision-maker under Minnesota Statutes § 253B.092; or
- (j) evaluator charged with conducting a home study under Minnesota Statutes §§ 245A.035 or 259.41; or (k) attorney for the child.
518.619 CUSTODY OR VISITATION; MEDIATION SERVICES.
The purpose of the mediation proceeding is to reduce acrimony which may exist between the parties and to develop an agreement that is supportive of the child’s best interests. The mediator shall use best efforts to effect a settlement of the custody or parenting time dispute, but shall have no coercive authority.
NOTE: Jamie Manning acting the capacity of a Guardian ad Litem while simultaneously conducting mediation between the parties IS exercising considerable coercive authority. Jamie has actually made implied or direct threats to me that if I do not comply with her directives, I will lose custody and/or parenting time (which has happened).