New funding source for family law Guardians ad Litem & expanded eligibility
by Joseph Fischer, Staff Attorney • Office of Court Services, Children & Families Division
Guardians ad Litem play a valuable role in providing insights into the lives of children involved in family law cases throughout Indiana. These professionals offer a voice to children whose lives are impacted by domestic relations matters. Having access to GALs, especially in high-conflict cases, can provide judicial officers with valuable information when determining what is in the child’s best interest.
However, because there has not historically been a funding source to pay for GALs, the parties would bear the cost when a GAL is appointed, and it has often not been feasible for courts to appoint GALs in cases where they are most needed. This prevented courts from receiving an independent report from a party whose sole focus is the best interest of the child.
Recognizing their significance, recent legislative changes authorize a new funding source for GALs in family law cases through Indiana’s Domestic Relations Alternative Dispute Resolution Fund Plan. The new legislation also loosens restrictions on parties’ participation in the program when they are charged with or convicted of particular crimes.
History of the ADR Fund Plan
Established by the Indiana General Assembly in 2003 under IC § 33-23-6, the Domestic Relations Alternative Dispute Resolution Fund Plan operates as a voluntary program available to all Indiana trial courts. Participating counties can assess an additional $20 fee on parties filing legal separation, paternity, or dissolution of marriage petitions. These funds are then allocated to an ADR fund, which can be used to finance alternative dispute resolution services in family law cases that primarily benefit litigants who have the least ability to pay.
Eligible services originally included mediation, reconciliation, nonbinding arbitration, and parental counseling. Courts have used these categories to fund programs such as:
- In-house mediation or referrals to local mediation groups, open-door mediation days, and facilitations
- Parenting classes and co-parenting education
- Parenting coordinators and parenting evaluations
- Limited case management services
Each county develops a plan to provide services that will best serve family law litigants in their jurisdiction. The plan must be approved by a majority of judges in the county who exercise jurisdiction over domestic relations and paternity cases. In addition, Rule 1.11 of the ADR Rules requires the county to obtain approval of the plan from the Chief Administrative Officer of the Indiana Office of Judicial Administration. Although all ADR Fund Plans have similar components and must follow established standards and guidelines, courts can choose to fund all or some of the services allowed in the statute. Courts are encouraged to be creative and use these funds to help litigants resolve disputes in ways that avoid contentious, expensive, and time-consuming litigation.
Services provided through the local ADR Fund Plan must primarily benefit litigants with the least ability to pay. Most parties must provide a limited co-pay outlined in the local ADR Fund Plan for the service. Each county creates its own sliding scale for payment of co-pays by the parties. Counties typically derive these sliding scales from the Federal Poverty Guidelines. Some parties may not have to pay any co-pay; others may not qualify for financial assistance to participate in the program at all based on their income, though courts can still refer them to the service. Each county that participates in the ADR Fund Plan program must submit a report each year summarizing the results of the program.
The 2003 legislation prohibited parties with pending charges or a prior conviction of any crime listed as an “offense against the person” in IC § 35-42 from participating in services paid for by the ADR fund. This broad prohibition kept many parties from participating in ADR services for conduct that occurred many years prior and/or was unrelated to their spouse or the pending family law case. Judicial officers had no ability to consider the nature and seriousness of the offense or to determine that parties should be allowed to participate.
2023 ADR Fund Plan Updates
The Family Law Taskforce—established by the Indiana Supreme Court under its Innovation Initiative and chaired by Court of Appeals Judge Elizabeth Tavitas—recommended in its report that the ADR Fund Plan statute be amended. The taskforce suggested the statute should include GALs in the list of services eligible for funding and the program should be more inclusive of parties with pending charges or convictions of statutorily specified crimes. During the 2023 legislative session, Rep. Wendy McNamara introduced H.B. 1493, which introduced two significant changes to the ADR Fund Plan program:
- Funding for Guardian ad Litem Services: GALs are now included in the list of services that can be paid for from the ADR Fund Plan. This expansion acknowledges the vital role played by GALs in family law cases, particularly in providing reports focused on the best interests of the child.
- Removal of Automatic Participation Barriers: Rather than an automatic bar to participation based on criminal history, persons previously prohibited from receiving services may now receive services under the ADR Fund Plan if the judicial officer determines the party does not pose an unreasonable risk of harm to other parties. If the court makes this finding, the parties remain eligible for services provided through the ADR Fund Plan.
On July 1, 2023, this legislation signed by Governor Holcomb went into effect as Public Law 151.
Amending or Creating a New ADR Fund Plan
More than half of Indiana’s counties have implemented ADR Fund Plans, offering a substantial number of services to low-income litigants each year. Counties that have not yet developed a plan are encouraged to do so.
Although recent changes authorize funding for GALs and expand eligibility for services in counties with active ADR Fund Plans, the county’s plan must be amended to reflect these changes prior to implementing them. The legislation does not alter current plans or waive the need for courts without a plan to draft and submit one for approval.
Counties have the flexibility to create or amend their ADR Fund Plans throughout the year, with no specific application deadlines or time constraints. To assist in the development of a new plan or to amend an existing plan, the Office of Court Services provides guidance as well as an “ADR Fund Plan Starter Kit” and several sample plans.
To amend an existing ADR Fund Plan or receive more information on creating a plan, please contact [email protected].