I liked Jane (not her real name) as soon as I met her. She was kind, warm and funny. She asked me so many questions about myself that, at times, I forgot that she was the focus of our meeting.
We were at the courthouse that day because of her husband. A few weeks before he had come home drunk and insisted she make him dinner. Jane, asleep on the couch after a long day of work, told him that he could make it himself.
Jane’s husband flew into a rage. He dragged her from the couch into the kitchen, where he began beating her on the head. He wrapped a towel around her neck so tight that she couldn’t breathe. He raised a gun, pointed it at her, and fired. He missed.
Jane’s husband went to jail, and Jane decided to divorce him. Jane’s son had witnessed the assault, and she didn’t want her son to learn that it was OK for men to treat women that way. For her son, Jane took her first brave step to end a decade-long cycle of violence.
I represented Jane for free in her divorce. She didn’t have a lot of money and was struggling to make ends meet without her husband’s income. Her income was below 200 percent of the federal poverty level. She couldn’t afford to pay for a divorce attorney.
She did, however, have to pay for one for her husband.
Because her husband was incarcerated, Kentucky law requires that the court appoint a guardian ad litem, an attorney, to represent him. The party seeking a divorce pays the fee for this attorney. That means that Jane was legally obligated to pay for an attorney for the man who was in jail for assaulting her.
The law requiring courts to appoint a guardian ad litem for an incarcerated person is not inherently bad. Incarcerated people should have fair and adequate representation, even in civil matters. The issue is about who should bear the cost of this system.
Domestic-violence victims should not have to pay for attorneys for their perpetrators. Domestic violence is rooted in control, and requiring a victim to pay in these circumstances puts the control back in the hands of the perpetrator. What should be a process of empowerment can become a path to re-traumatization.
Similarly, low-income individuals shouldn’t be forced to pay a fee they cannot afford to get a divorce. The guardian ad litem fee is not automatically waived because a litigant is poor. And the Kentucky Supreme Court has been clear when addressing similar fees: Being poor is not an excuse not to pay.
Some counties and some judges will waive guardian ad litem fees in some cases. But we cannot rely on judge-specific and county-specific decision-making to guarantee uniform justice.
Some appointed guardian ad litems will choose to forgo a fee if an attorney explains the situation to them. But many litigants without attorneys don’t know that they should ask for a waiver.
We have to take steps to let our courts do better. That’s why the Kentucky Equal Justice Center is launching an access to justice initiative to make court systems more open to all people.
In this case, for example, a small start would be for the state to pass legislation requiring the state, not the victims, to pay for guardian ad litems in situations like Jane’s.
Courts deal with the most intimate problems in a person’s life: their families, their children, their relationships. For that reason, the burden is on all of us to ensure they are fair and just for all.
Cassie Chambers is a recent Harvard Law graduate and a current Skadden Fellow at the Kentucky Equal Justice Center.