Superior Court Judge Leslie Olear of West Hartford is no doubt a profoundly grateful jurist. She was nearly turned out of office by lawmakers the other day. The House of Representative voted 78-67 to permit her to keep her job, an unusually narrow margin. The state Senate voted 28-4 to keep her, but only after the House had already approved her.
What nearly derailed the career of this judge?
The family law “system is crying out for reform,” said Hartford Democrat Rep. Edwin Vargas. “I’m not saying that this judge is the only one that doesn’t deserve reappointment. There are quite a few of them."
What is remarkable is that dozens of other lawmakers apparently agree with Vargas. If so, these lawmakers should offer us something more than bullying judges who are doing the best they can with the flawed legal doctrines and policies that lawmakers created in the first place.
I’ve never appeared before Judge Olear; indeed, I don’t think I could pick her out of a lineup if my life depended on it, so I don’t know whether the near-torpedoing of her judicial career was warranted. However, it does seem unfair to use her as a symbolic token. The fact is the family court system is in major need of an overhaul. It’s going to take more than the firing of a judge or two to fix it.
A legislative task force has been gathering testimony from disgruntled consumers of the family court services, typically, parents of young children. The focus of much of their ire is the routine appointment of guardians ad litem, adults who serve as spokespersons for the children’s best interest in contested custody battles. These guardians are appointed by the court from a list of candidates who have attended a six-session training program approved by the judicial branch.
Serving as a guardian ad litem can be lucrative work, as the fees are paid by the parties, with the court serving as the collection agency. It is not uncommon to see bills in the tens of thousands of dollars for guardians. A parent who refuses to pay the bill faces being held in contempt by the judge who appointed the guardian — imagine a collection agency with a gavel and the power to imprison upon non-payment.
In a case involving a client of mine, things approached, and perhaps exceeded, the bounds of absurdity. A client with sole legal custody of his three young children faces contentious court proceedings because the mother, absent for a time from both the children’s lives and the state, resurfaces and asks for more “parenting time,” as the court calls it. Because the parties cannot agree on what’s good for the kids, a guardian ad litem steps in.
My client is incensed that a state-appointed court functionary has been imposed on him by judicial fiat. When he made his feelings known to the guardian ad litem, she asked the court to appoint a lawyer for her. The court obliged, and the lawyer promptly got an order from the judge limiting my client’s right to speak to, but not his duty to pay, the guardian.
After months of dithering, we finally got a hearing before a new judge to remove the guardian ad litem. The trial court heard two days of evidence before sidelining the guardian for failure to communicate with both parents. This has not stopped the guardian, however, from pressing for payment of some $25,000 in fees she says she earned.
In what other line of work can you get fired for not doing your job and then ask the court for collection of fees?
The real issue isn’t that there are a few bad apples in the orchard from which guardians are chosen. The fact is, there are many excellent guardians ad litem. The real problem is we ask them to do the impossible. Who’s to say with any degree of certainty what is truly best for children?
I say Solomon was close to right in how he resolved a dispute about the parenthood of a child: He offered to cut it in two so that both claimants could share the child. The real mother, inspired by love, did not want to see her child destroyed — she told Solomon not to harm the child, thus proving that she was the baby’s real mother.
We all have a compelling interest in healthy children. Seeing to it that children of divorce are nurtured in a loving way is important work. It is important enough, I say, to require that guardians ad litem be removed from the profiteering, fee-driven world of the family courts. These guardians should be paid for, and regulated, by the state, just as are judges.
Connecticut state-court judges are initially nominated by the governor after having been vetted by the Judicial Selection Commission, an 11-member body of lawyers and lay persons appointed by the governor and legislative leaders. Once nominated, lawmakers can confirm the nominee or not, as it suits them. If confirmed, the judge serves an eight-year term. The commission also evaluates judges seeking reappointment after the expiration of their eight-year term, but second and subsequent terms do not require gubernatorial approval and go directly to the General Assembly.
It is a rare thing for a judge to be denied confirmation or reappointment. In part, that is because the initial appointment process is intensely political in nature. There are plenty of great lawyers on the list to become judge, but many of them lack the political juice to get their name onto the governor’s desk. The governor, after all, observes the first law of political dynamics — never give something, in this case a nomination to the bench — without getting something in return.
We ought to create an independent commission to evaluate and approve guardians ad litem. Subject them to reappointment and potential removal. Vet them as we do judges. The decisions they make, after all, have consequences that last a lifetime.