Monday, June 7, 2004
Custody Battles Drain Accounts, Emotions
By Katie Burford
Journal Staff Writer
Leslie Cumiford, an engineer, said she spent about $90,000 in a protracted custody battle for her son.
Police Sgt. Paul Heh estimates that in 10 years, he has spent about $100,000 on the case involving his twin daughters.
Field investigator Janice Blevins pegs her legal bills at about $56,000.
These parents are part of a 50-member organization Center for Family Justice that is trying to rein in high costs at family court.
"We feel that there's a cottage industry out there that consists of attorneys, guardians ad litem, psychologists and custody evaluators," Cumiford said.
The group's sharpest criticism is aimed at guardians ad litem, lawyers appointed to represent the child. They usually bill between $100 and $200 an hour, and they routinely request that experts such as psychologists be appointed.
The longer a case drags on, Cumiford said, the more they get paid.
"If you just took them out of the picture ... the cases would be solved faster and more cleanly and more quickly," she said.
Guardian ad litem Frank Spring disagrees. He says guardians are needed to prevent children from becoming pawns in their parents' feuds.
He blames high costs on parents who prolong their battles.
"You've got to stop them from harming the child by fighting each other," he said.
State District Judge Ernesto Romero, one of four family court judges in the Second Judicial District, concurs with some of the parents' complaints.
The court should make guardians ad litem "financially more accountable and impose time constraints," he said.
Judge Deborah Davis Walker, presiding family court judge in the district for six years, said she is open to listening to the group's complaints.
She said family court officials have been evaluating how to make the system more efficient and less expensive.
Role of guardian
In family court, each parent has an attorney or they represent themselves. When child custody is contested, the judge may appoint a guardian ad litem to represent the child.
The duties of the guardian ad litem a position created by state statute in 1977 include:
Meeting with the child before hearings.
Coordinating with mental health care and other professionals.
Reviewing medical and psychological reports.
Contacting the child before and after changes in living arrangements.
Reporting to the judge on the child's adjustment.
Some judges have tried to streamline the process by giving guardians ad litem the power to make decisions that the parties must abide by until a judge says otherwise.
But Cumiford said that doesn't allow parents to present evidence in their favor before a change is made.
About a year ago, she formed the Center for Family Justice to bring together parents like herself. Their current focus is on the high cost that they say the system imposes. There's no incentive for guardians to solve cases or curtail costs, they say.
"We've got families where all their life savings are gone," Cumiford said. "They've had to declare bankruptcies. They've lost their homes. That to me looks like a big money grab."
Heh said he spent his children's college fund and maxed out his credit cards because of legal fees. In the end, he had to declare personal bankruptcy, he said.
"My $100,000 is a pittance compared to some people," he said.
A little under half of that went to guardians appointed to the case, he said.
Cumiford estimates 20 percent of her legal expense was for guardian ad litem fees and another 30 percent was for services and evaluations requested by the guardian.
But guardians ad litem say there are other reasons for high costs.
"Some cases people will fight it's a war. I mean there's just no other way to describe how they perceive it," guardian ad litem Jeff Kauffman said.
Giving guardians the power to make decisions, he said, helps resolve minor disputes quickly and prevents people from delaying the process with excessive court motions.
Kauffman, whose fee is $150 an hour, said he is a guardian ad litem in 15 to 20 cases right now. About 10 require frequent attention, he said.
Kauffman compares his role to that of a baseball umpire.
"The decisions have to be made. You may not like it. You may want to argue with them," he said.
As for racking up exorbitant bills, guardian ad litem Spring said parents can keep costs down by simply getting along.
"I tell everybody this in my cases: 'This is expensive. If you can reach agreements with your former spouse without my presence ... look what you've saved.' ''
He said the "vast majority" of divorce cases don't require guardians ad litem.
Some of the problems
Family law attorney Tom Montoya has represented both parents and children as a guardian in custody cases during his 24-year career.
Like Cumiford, he doesn't believe it's good for guardians ad litem to have the power to make decisions that both sides must follow. Parties often don't get an equal opportunity to present their sides, the way they would in court.
"It doesn't really give both parties due process rights," he said.
He sees other problems, too. Because guardians ad litem have no special training with regard to children, they frequently ask that a psychologist or counselor be appointed to make recommendations. The guardians almost always go along with the expert's recommendations, he said, so having both of them on the case is redundant.
He acknowledged that the cost of paying an attorney, a psychologist and a guardian ad litem is beyond most people's means.
"It is very burdensome to litigants because they can barely afford their own attorney fees," he said. "There are few cases where people have that kind of money."
Romero said the guardian ad litem system needs changing.
The changes should "make the use of guardians ad litem much more cost effective, much more focused by articulating in orders what they're supposed to do," Romero said.
He said he also supports requiring guardians ad litem to have special certification.
Spring, a lawyer and clinical psychologist, agrees.
"I think the notion of education and certification are helpful," he said.
This could involve seminars and course work on mediation, mental health and family court process.
Attorney Montoya said the New Mexico Supreme Court could address the problems by making changes to the procedural rules that apply to guardians ad litem.
Cumiford suggests that instead of using lawyers as guardians ad litem, the courts could use volunteers.
Spring said that wouldn't work.
"This is for the purpose of helping children in the context of litigation," he said. "If you're not a lawyer and don't know how to practice law ... how could you do it?"
A major cost in an ugly custody battle isn't financial it's emotional, and kids share the bill.
"Even little ones, they will tell you, 'I feel like a toy that's being pulled apart. I wish there was two of me so I could be with mommy and daddy both,' '' Spring said. "They're really tragic cases."
The struggle leaves scars, Kauffman said.
"I don't think there's any kids that could survive this kind of thing without having some sort of psychological problem," he said.
Cumiford, whose case Spring was assigned to, agrees that kids suffer.
"They lose all sense that they have any say over what happens to them," she said.
But she places blame on a bad system that thrives on family strife.
"The more the conflict goes on, the more those people get paid," she said.