Appellate court rules on GAL fees

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A guardian ad litem must differentiate between attorney and non-legal work when billing in a paternity case, and trial courts must carefully consider guidelines set out in probate-focused Indiana Professional Conduct Rule 1.5 when deciding how to compensate for fees and expenses.

The Indiana Court of Appeals ruled today in the case In Re: The Paternity of N.L.P., Robert Pendowski v. Lisa A. Sizemore/ Jill S. Swope, No. 45A03-0805-JV-226, vacating and remanding to Lake Superior Court a case dealing with an issue of first impression.

Specifically, the appeal looks at whether Swope, who for four years was a court-appointed guardian ad litem in a paternity case, reasonably calculated and billed for her legal and non-legal work - preparing and submitting reports, making home visits to both households, supervising parenting time, visiting the child's school, reviewing records, and also preparing for and attending court hearings by testifying and cross-examining other witnesses. Swope submitted a report in October 2007 that outlined fees and expenses totaling $34,800.

The trial court determined that the fees weren't reasonable, based on the following: Swope billed by the quarter hour and not tenth of an hour; long-distance phone calls and copying or faxing charges shouldn't have been included; the parents' income and ability to pay; and some of the services were duplicated by a custody evaluator. The trial court reduced the total fees to $20,000 and ordered each parent to pay half, and then denied Swope's motion earlier this year to correct error.

In writing for the appellate panel, Judge James Kirsch wrote, "The trial court found the fees to be unreasonable, but instead of engaging in an analysis of what a reasonable fee would have been, it arbitrarily chose $20,000 to be a reasonable amount of fees for this paternity action. We believe that a more complete careful analysis of the duties performed is required ...."

The appellate judges relied on Indiana Code § 31-14-18-2(a) about what trial courts can order a party in a paternity action to pay, but also looked to probate and estate administration statutes and rules because the reasonableness of the amount of GAL fees in paternity matters is one of first impression for Indiana. One of those guiding provisions is Rule 1.5, which includes factors such as time and labor required, fees customarily charged in that locality for similar legal services, and whether that fee is fixed or contingent.

Understandably, the court didn't apply those factors because of the first impression nature here, Judge Kirsch wrote. But at the same time, Swope's fees weren't reasonable, the court ruled.

"A GAL is oftentimes not an attorney, and a person acting as a GAL should not get an attorney's billing rate for performing GAL duties," he wrote. "We believe that the services performed as a GAL and the services performed as an attorney should be billed separately and at different rates. Any legal work done for the matter such as, drafting pleadings and participating in court hearings, may be billed as attorney fees. Any non-legal work done in the matter such as supervising parenting time, home visits, and preparing GAL reports, should be billed as GAL fees at a separate rate."

The case is remanded for the lower court to further analyze the fees based on this appellate opinion.


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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.