Tag: guardian ad litem

The Financial Cost of Divorce

This Week’s Blog by Carole T. Orland

What will my Divorce Cost?

The short answer is that it is hard to know at the outset what a divorce will eventually cost.  Since virtually all divorce lawyers in Connecticut bill on an hourly rate, the cost is a function of time spent on the case. At Broder & Orland LLC, we have handled divorces ranging in cost from a few thousand to millions of dollars.

Is Cost Related to the Complexity of the Case? 

Not necessarily. Some of the more financially complex cases settle quickly when the parties, their counsel, and experts are sophisticated and are financially savvy. These cases sometimes involve a variety of compensation components, including for example, stock options, RSUs, SARs, phantom stock, and deferred compensation. While this can initially appear daunting, it doesn’t have to be if the parties are well-educated about income variants.

Will the Cost of my Divorce be Minimal if our Assets are Very Modest? 

We would hope so and at our firm we strive to make it cost-effective for our clients in every case. Unfortunately, different pressures can arise when the marital estate is relatively modest and there isn’t enough money for both parties to live their lives post-divorce in the manner they were doing so during their marriage. In these cases particularly, it is imperative to do a cost-benefit analysis and to be real about the results. 

Will Children’s Issues Increase the Cost of Divorce?

Quite possibly. It is in everyone’s best interest to settle on a realistic Parenting Plan as early as possible in the case. If that doesn’t happen, the Court will sometimes appoint a Guardian Ad Litem (GAL) as an investigatory arm of the Court whose role it is to report on the best interests of the children, or Attorney for Minor Children (AMC), who will act as an advocate for the children taking into consideration their best interests. The cost of these additional individuals will be borne by the marital estate and having them involved typically signals additional litigation and therefore, higher cost. 

What Other Factors can drive up the Costs of a Divorce? 

Divorce costs may spiral upward for many reasons, for example: one or both parties may not be cooperative in the discovery process or have unrealistic expectations.  Attorneys and clients may not be in sync about objectives and goals. The Court system is fraught with inherent delays and continuances mean more time and more money. 

What can I do to keep my Divorce Costs from Getting out of Control?

  • Hire a reputable and knowledgeable attorney.
  • Make sure you are always on the same page as to how your case is being handled.
  • Settle the kids’ issues as soon as possible. Attend to discovery deadlines.
  • If finances are complex, make sure to assemble a good team of experts who can educate you about the various components. In short, demystify the finances so you can move forward to settlement.
  • Be reasonable in negotiations with your spouse even if there are bad feelings, as is typically the case in divorces.
  • Pay attention to your monthly bills and your retainer status.

At Broder & Orland LLC, with offices in Westport and Greenwich, CT, we strive to make our clients’ divorce cases cost efficient, whether the case involves a modest marital estate or is a high net-worth or high-income earner matter. We constantly counsel our clients on the cost-benefit of decisions as the case progresses. Our goal is to achieve for our clients the best possible outcome at the most reasonable cost.

Divorce in Connecticut: The Guardian Ad Litem (GAL)

This Week’s Blog by Eric J. Broder

What is a Guardian Ad Litem in a Connecticut Divorce Case?

In the event that the parties cannot reach a resolution on parenting or custodial matters, a Guardian Ad Litem (GAL) is often appointed by the Court, either directly by the Judge or after agreement between the parties and counsel. The primary function of a GAL is to promote and protect the child(ren)’s best interests throughout the divorce case.

Who qualifies to be a Guardian Ad Litem?

To qualify, a GAL must be an attorney in good standing who is licensed to practice law in the state of Connecticut, or a mental health professional in good standing who is licensed by the Connecticut Department of Public Health in the areas of clinical social work, marriage and family therapy, professional counseling, psychology, or psychiatry.

Further, pursuant to Connecticut Practice Book Section 25-62 there is a training program which must be completed in order for a person to qualify as a GAL.

What is the Role of the Guardian Ad Litem?

The primary role of a GAL is to determine what is in the best interests of the child(ren) with respect to custody and/or a parenting plan. The GAL will investigate all relative facts and claims, meet with the parties, the child(ren), and any relevant third parties such as teachers, childcare providers, coaches, and/or medical professionals/therapists treating the child(ren) and the parties.

The GAL will participate in court hearings and possibly testify. If the matter goes to trial, the GAL will make recommendations to the court as to how the outstanding child(ren) related issues should be decided. In my opinion, the primary function of a GAL, in addition to the above, is to strongly encourage the resolution of disputes between the parties. 

Who Pays for the Guardian Ad Litem?

The GAL is paid for by the parties. The court will review the financial affidavits to determine the percentage each party will contribute to the GAL’s fees. If the parties cannot afford a GAL’s rate there is a sliding scale that the court can apply thereby limiting the hourly rate of the GAL.

What is the Difference Between a Guardian Ad Litem and an Attorney For the Minor Child (AMC)?

The basic difference is that a GAL represents the child(ren)’s best interests and, while the AMC supports the best interest of the child(ren), he or she primarily represents the child(ren)’s legal interests.  Generally speaking, a GAL is appointed for younger children, while an AMC is appointed for older children.

Another notable difference between a GAL and an AMC is that a GAL may testify as a witness at a hearing or trial and an AMC may not.

Can a Guardian Ad Litem be Removed from a Case?

While it is an extremely rare occurrence, it is possible for a GAL to be removed from a case. In order to do so, a party must file a motion with the court to seek the GAL’s removal and prove that the GAL is not acting in the best interests of the child(ren) and has a prejudice and/or bias against one of the parties.

At Broder & Orland LLC we carefully analyze and make all efforts to choose the most appropriate GAL for our client as well as his/her child(ren). Our hope and expectation is that a GAL will be able to work with the parties and their counsel directly to achieve a settlement which first and foremost benefits the child(ren).

Children and Custody Disputes: Do My Child’s Wishes Matter?

This Week’s Blog by Andrew M. Eliot

Must a Judge Consider My Child’s Wishes in a Custody Dispute?

No.  It is a common misconception that Judges must consider a child’s preferences in making determinations regarding a child’s custodial arrangement.

In fact, the only factor that a Judge must consider in rendering a custody determination is the “best interests” of a child.

Will a Judge Consider My Child’s Wishes in a Custody Dispute?

The short answer is — it depends.  Under the applicable Connecticut statute pertaining to custody determinations (C.G.S. §46b-56(c), Judges may — but are not required — to consider the “informed preferences of a child,” in determining what custodial arrangement is in a child’s best interest.  In practice, and through relevant judicial decisions, Courts have interpreted this to mean that a child’s preferences shall only be considered if a child is of sufficient age and is capable of forming an intelligent preference.

How Will a Judge Determine if my Child is of Sufficient Age and Capable of Forming an Intelligent Preference?

There is no precise answer to this question and no fixed age at which a child will be deemed to automatically meet this threshold.  Rather, whether a particular child meets this initial threshold is a determination that falls within the discretion of the Judge.

However, in considering whether a child is of sufficient age and is capable of forming an intelligent preference, such that his or her custodial preferences may be considered by the Court, a Judge is likely to consider not only a child’s chronological age (though this will certainly be a factor), but also the child’s maturity level and intellectual capacity.  A Judge is likely to make such assessments by hearing witness testimony from relevant individuals (such as a child’s parents, a Guardian Ad Litem, and/or any relevant mental health professionals) and potentially considering additional evidence such as documentation relating to a child’s academic performance at school.

If my Child is deemed of Sufficient Age and Capable of Forming an Intelligent Preference, will a Judge Honor His or Her Wishes?

Not necessarily.  Notably, even if a Judge determines that it is appropriate to consider a child’s custodial preferences, he or she still has the discretion to determine that the expressed preferences of the child are not in the child’s best interest, and render orders that are contrary to the child’s wishes.

Parents should also be aware that Judges are often inclined to view the expressed wishes of a child with skepticism or distrust, given that a child who is the subject of a custody dispute may have conflicting feelings about custodial arrangements, may feel pressure from one parent (or both) to express certain preferences, and may have preferences that are subject to change at any moment.

At Broder & Orland LLC, we have extensive experience handling complex and emotionally charged custody disputes throughout Fairfield County and Connecticut and can help clients properly assess whether and to what extent a child’s wishes might be considered by the Court.

Do My Child’s Wishes Matter in a Custody Dispute?

This Week’s Blog by Andrew M. Eliot

  • In adjudicating custody and parenting time disputes, Courts are required to give consideration to a child’s wishes only in instances where a child is, “of sufficient age and capable of forming an intelligent preference.”
  • There is no fixed age at which a child’s wishes must be considered by a Court in rendering a custody determination.
  • Even if a child who is child determined to be of sufficient age and capable of forming an intelligent preference expresses such a preference regarding custody or parenting time, Courts are not bound to follow the child’s wishes. Rather, Courts have the discretion to determine that a child’s preference is not in his or her best interest.

Understandably, many parents who are facing (or are in the midst of) a custody dispute, wish to know what impact their child’s wishes or preferences will have with respect to physical custody arrangements (i.e., which parent a child will predominantly reside with, and when and how often a child will be with the other parent).  There are a several common misconceptions on this topic.  Perhaps most notably, many people incorrectly believe that a child’s preferences must be considered by a Court in a custody dispute, and/or that upon reaching a certain age their child will have the absolute right to determine his or her own custody arrangement.  Each of these notions is inaccurate.

Pursuant to the applicable Connecticut statute pertaining to custody determinations (C.G.S. §46b-56(c)), the only factor Courts must consider in rendering custody determinations is the “best interests of a child.” With respect to a child’s preferences, the statute provides only that a Court may consider the “informed preferences of a child,” in determining what is in a child’s best interest.  Notably, Courts have interpreted this portion of the statute to mean that a child’s preferences shall only be considered by a Court if a child is of sufficient age and is capable of forming an intelligent preference.  Whether a particular child meets this initial hurdle is a determination that is within the sound discretion of the Court, but is generally one that depends not only upon a particular child’s chronological age, but also upon the child’s maturity level and intellectual capacity, as assessed by the Court through whatever evidence a Court deems relevant.  Such evidence may include witness testimony from individuals such as a child’s parents, a Guardian Ad Litem if one has been appointed, and/or any Family Relations officer or Court appointed mental health professional who may have conducted a custody study or psychological evaluation of the child.  Such evidence might also include documentation relating to a child’s academic performance at school, such as a report card.  If a Court determines that a child does indeed meet this initial threshold, the Court must next identify what the child’s wishes are and, finally, determine how much weight the child’s preference should be afforded.

Notably, even where it is determined that it is appropriate to consider a child’s custody preferences, Courts still have the discretion to determine that the child’s expressed preference is not in the child’s best interest, and render custody orders that are contrary to the child’s wishes.  Additionally, parents should also be aware that Courts may be inclined to view the expressed wishes of a child with a degree of skepticism or distrust, given that a child caught up in a custody dispute may be likely to have conflicting feelings about custodial arrangements, may have preferences that are subject to change at any given moment, and/or are succumbing to pressure from one parent to express preferences in favor of that parent.

At Broder & Orland LLC, we have extensive experience handling complex and emotionally-charged custody disputes throughout Fairfield County and can help clients properly assess whether and to what extent a child’s wishes might be considered by the Court.

What is a Guardian ad Litem?

A Guardian ad Litem, often referred to as “GAL,” is an individual appointed by the Court to ensure that the minor child’s best interests are represented during a parenting or custody dispute. Not every divorce case or custody dispute requires the appointment of a Guardian ad Litem. In fact, if at all possible, the Court tends to encourage parties to resolve parenting disagreements without the involvement of third parties.  When parties are unable to agree on custody or a parenting access arrangement, or if there are specific parenting issues that simply cannot be resolved, a Guardian ad Litem may be appointed to either assist the parties in reaching an agreement, or to inform the Court as to the best interest of the minor child.

A Guardian ad Litem may be appointed upon the Motion (request) of one party, the agreement of both parties, or when a Judge determines that a Guardian ad Litem is necessary in the case.  The role of a Guardian ad Litem is usually served by an attorney or a mental health professional. In order to be appointed, the Guardian ad Litem must be qualified by the Connecticut Judicial Branch after completing specific course training. Furthermore, the State of Connecticut Judicial Branch has developed a code of conduct which outlines the obligations, expectations and responsibilities of a Guardian ad Litem.

Although a Guardian ad Litem may be an attorney by profession, the role of a Guardian ad Litem is not the same as that of an Attorney for the Minor Child. An Attorney for the Minor Child, sometimes called “AMC,” is legal counsel for the minor child, both representing the child’s legal interest while considering the child’s best interest.  Conversely, the Guardian ad Litem does not provide legal representation to the child or the parties. No privilege exists regarding communications between the Guardian ad Litem and the child or the Guardian ad Litem and the parties. The Guardian ad Litem may serve, and often does, as a witness in the case at Hearings and Trial, and can testify about things that were said by the child and the parties, to the extend these communications are admissible under our Rules of Evidence.

At the time of the appointment, the Court will issue an Order with the specific duties of the Guardian ad Litem, which depend on the issues that are outstanding in the case. These duties may include, but are not limited to: investigating facts, interviewing the parties and the child, reviewing files and records, speaking to teachers, coaches and others, speaking to medical professionals, participating in Court hearings, making recommendations to the Court, and encouraging and facilitating the settlement of disputes.

While the Guardian ad Litem should be fair and impartial, this does not mean that he or she is not allowed to have an opinion or make recommendations.  Sometimes these recommendations will align more with one party’s philosophy of the case than the other’s. While the Court is not bound to accept the recommendations of the Guardian ad Litem, and the GAL does not make decisions for the Court, his or her recommendations and testimony are usually carefully considered by the Court when making a final determination about parenting issues.

The fees of the Guardian ad Litem are paid by the parties. The initial retainer amount and the hourly fee will be established by the Court at the time the Guardian ad Litem is appointed. If the parties cannot agree on an appropriate payment arrangement, the Court will make an order after reviewing the financial circumstances of the parties, including reviewing the parties’ signed, sworn Financial Affidavits.

The decision as to whether to appoint a Guardian ad Litem and then choosing the right person to serve as Guardian ad Litem is extremely important to the tenor and outcome of any custody dispute. The attorneys at Broder & Orland LLC are experienced in serving as Guardians ad Litem and litigating and settling cases where a Guardian ad Litem has been appointed.