MOUNT VERNON – Appellate judges Thomas Welch and Milton Wharton found a child’s guardian restricted a father in a custody dispute without authority but they immunized her from civil liability.
They found none of the conduct of guardian Jennifer Thompson of Benton was performed outside of her appointment.
“This is an important distinction as Thompson would be subject to civil liability for any conduct not performed within her court appointment,” Welch wrote.
Justice John Barberis dissented, stating an appointment doesn’t provide a guardian with blanket immunity for any and all actions.
“In my view the court’s finding that defendant Thompson exceeded her authority as guardian ad litem equates to a finding that she exceeded the scope of her appointment,” Barberis wrote.
He found an issue of fact as to whether Thompson acted as judge.
Plaintiff James Hoey married Jennifer Hoey in 2007, and a child was born.
They terminated the marriage in 2012, with regular visitation rights for each.
In 2015, James moved to amend the divorce order and establish joint custody.
In November 2016, Franklin County Circuit Judge Thomas Foster appointed Thompson as the child’s guardian in the litigation.
In January 2017, Jennifer Hoey petitioned for a protection order to stop visitation between James and the child.
At a hearing, Thompson testified and questioned witnesses.
After the hearing she moved for counseling of James and the child.
Foster entered a temporary order requiring pastor Lynette Barnett to supervise James in visits with the child.
On the same day, Thompson notified the parents that she would choose the place of each visit, identify topics of conversation, and authorize the child to end visits.
She banned James’s parents from visits.
Her next two messages banned Barnett and appointed another supervisor.
James sued his former wife, Thompson, and social worker Cathy McClure in May 2017, claiming they conspired to alienate the child.
He claimed Thompson advised Jennifer Hoey to file for a protection order.
Thompson moved for summary judgment in 2020, on the basis of “quasi judicial immunity.”
Foster held a hearing in November 2021, and granted judgment in January.
He found Thompson exceeded her authority by participating as guardian, witness, and attorney at a hearing.
He found she exceeded her authority when she changed terms of visitation and replaced the visitation supervisor without his permission.
He immunized her anyway, finding she acted within the scope of his appointment.
On appeal Welch and Wharton rejected any distinction between conduct outside the scope of authority as opposed to outside the scope of the appointment.
Barberis found they failed to outline parameters of what actions fall outside the scope of an appointment.
Jerrod Montgomery of Carbondale represented Thompson.
Lane Harvey of Mount Vernon represented James Hoey.