Judges Violate the 5th Amendment Right of Citizens in Divorce Cases

“Nor shall be compelled in any criminal case be a witness against himself” These are one of the the lofty, important human rights guaranteed to all US citizens by our world famous Constitution. Yet in state after state these 5th Amendment citizen rights are being violated by family courts, the very institutions that are supposed to protect those rights. This has been going on unnoticed by many for some time and has almost become accepted as a regular way of doing business by the courts, Judges, lawyers, officers of the courts and uninformed consumers.

What Judges are condoning- whether directly or indirectly- are asking one or both people involved in a custody to sign over their rights to privacy in confidential, privileged transactions, without explaining how this confidential information will be used- for or against the party. In the example provided below, the judge has ordered the defendant to provide proof of not only the attendance of counseling, but to allow the counselor to speak with the Plaintiff on the Defendants progress.

Click on image for expanded view

Why is this a violation of the defendants 5th Amendment rights? There may be those who will say that the defendant has a choice. He/ she does not have to agree to follow the judge’s order. And this, in theory, would be true. In this case, however, the defendant was faced with the following:

1. He/ She was threatened with contempt of court and jail if he/ she did not comply

2. He/ She could agree with the release of information to his/ her ex and the courts without knowing how his therapy records might be used by the opposing attorney and the alienated spouse: in his favor, or against him, to argue that he/she was an unfit parent, should not have time with his/her child. He is being asked to risk testifying against himself, if his therapy records are released. Self-incrimination versus contempt of court and jail. Tough choices!

Although both choices are horrible and personally damaging, What would you do? In going to jail there is the potential of losing one’s job, having a jail record and the loss of income during jail time. These are all tangible concerns and fears. We know what the potential consequences are in going to jail.

On the other hand by agreeing to the release of information by the defendant there is no way of knowing in advance how that information is going to be used. It is impossible to give his/her “informed consent”, because it is impossible to know every possible or likely outcome of this action, and how it may affect your case. There is also no way to know that the information gained by the plaintiff and court will not be used as part of an attack by the plaintiff against the defendant. This is seen by many people as a sneaky, indirect way to get the defendant to testify against him/ herself. It is a violation of the defendants 5th Amendment rights, and it is all too frequently used by Judges that preside over family courts in custody disputes. It is also one of the many examples of how the Judicial process in family cases has corrupted itself. This process is in danger of becoming very ingrained in the system and it violates the constitutional 5th Amendment rights - to say nothing of common law principles about forcing consent.

The courts in the state are showing a lack of respect for the privileged, confidential information that is conveyed between the therapist and patient as an absolutely necessary part of therapy. In this case (as well as many others that we are aware of) under the threat of contempt of court, the defendant buckled and was forced into making a “release of information” decision that had ramifications that the Judge, plaintiff and most of all defendant had no way of knowing how it would play out. The Judge was in effect telling the defendant that he/ she would have to potentially testify against him/ her self – thus violating their rights under the constitution. The judge also unwittingly destroyed therapy by destroying the confidentiality necessary to make therapy work!

If you have had issues or if things about your case just don't seem right with your Guardian ad litem – please contact us for support at NationalGALalert@gmail.com or like us on Facebook to stay up to date on issues and events. We encourage your thoughts on this subject please feel free to respond.

JUDICIAL BRANCH MANAGEMENT DILEMMA

In thinking about why the Judicial Branch has such difficulty in creating a management system for its GAL program, a number of conceptual and structural impediments come to mind. The most readily acknowledged issue is no money for supervision or for a bureaucratic structure that would allow for normal bureaucratic management of Guardians ad litem (GAL). The financial excuse is probably true given the dire financial straights of the state, but we would say in addition that even were money available, there are more serious conceptual impediments preventing Judicial Branch’s internal management of Guardians ad litem. There are at least three conceptual issues that would make supervision or management of Guardians ad litem in any Judicial system fraught with legal and ethical problems unique to judicial branches of government.

The issues involve internal conflicts inherent in normal organizational role shifts, within a judicial system, from the role of supervision of vocational functioning of a supervisee to the administration of justice in cases involving complaints about supervision which seek legal solutions. Both GAL management and adjudication of formal, legal complaints about a Guardian’s management get very complex when these inherently conflicting activities have to occur within the same, small, fairly tight system. It would require a tight control over supervisory information and rigid compartmentalization of this information, so that information about supervision and management - and any conflict therein - does not seep into formal adjudication channels and pollute the fairness of any possible, future legal complaint process. Can it be done?

1.) Judicial Independence. In the spirit of Common Law, a judge is supposed to form his/her judgment about a case independently, uninfluenced (unswayed) by other branches of government or by partisan, community (or bureaucratic) politics.

This means standing apart from and being independent of politics and influence from the other branches of government. It should include not only formal political influence of the branches, but also government bureaucratic influences, including those of the judge’s own internal bureaucracy. This means using data presented in court by both parties to form an independent opinion and not to be swayed by outside influences or outside information or previous knowledge of the case. It would be difficult for a judge to resolve independently legal actions of any kind involving a Guardian ad litem; especially, a GAL with whom he/she has worked in court or even one who is known to the judicial system. Judicial independence gets damaged by foreknowledge of the GAL, by working relationships, by the rumors, by system gossip, by the system grapevines and by private awareness of the contentions.
 

A theoretical problem might start with supervisory discord between a GAL and his/her supervisor about an issue of supervision, leading to an internal management hearing and subsequently pursued in a formal court complaint. It might go the full route in court and continue as a case of higher level appeal. Administrative supervision within any such JB system - if there were conflicts - might at some point be apt to tangle with the branches’ system for administering formal justice, as those with supervisory grievances may seek legal appeal. It poses a huge bureaucratic challenge to keep information from these supervision and justice boundaries clean, separate and non-communicating in a single, small bureaucracy. This is a very special supervisory problem (unique?) for judicial systems, one that is not faced by administrative bureaucracies in other branches of government. Judicial independence, while an active member of a bureaucratic branch of government is challenging to say the least.

Having a non-judge be supervisor of a GAL would necessitate a bureaucracy to supervise the supervisor, a supervisory appellate process for conflicts arising out of supervision, and links within the same system to the judiciary for conflicts that "go legal". Judicial independence in Judicial Branches would necessitate a “Rube Goldberg” organizational structure and be strained to the degree that all judges would have to adopt an antisocial, personal ‘modus operandi’ to avoid contamination of their independence by normal internal organizational grapevines and normal organizational politics. And this would have to be at all times for perhaps an actually limited number of internal legal complaints. Can independence of one’s home bureaucracy be carried out, always, with any kind of credibility? What sort of person would avoid all informal social communications with system wide colleagues to be judicially independent? It is an example of the latent conflicting strains between supervision and legal functions within the same system that inevitably impinge on judicial independence.

2.) Judicial Impartiality. There are special challenges to maintaining judicial impartiality when one sits in formal judgment of a person who works in the same bureaucratic system, who is appointed by colleagues, who works for colleagues and friends in that system, who may be known personally or by reputation or rumor. The potential role conflicts and/or impartiality conflicts would seem enormous when colleagues, friends, coworkers must attempt to render impartial judgment. Can it happen? Can one have oversight of a working colleague (and at the same time maintain impartiality), with the unavoidable risk that the working colleague might at some point go to law with a formal complaint for some sort of problem resolution, which cannot be resolved in supervision? It is another serious conceptual impediment to the Judicial Branch system supervising or having oversight of GALs.

3.) Due Process. Implies that in a conflict, all parties and the judge will share in common, knowledge about the complaint and the case at the same time, and that everyone has equal opportunities to respond to all steps in the process. No one has the special advantage of being able to use secret information unknown to the other players or privately to exert undue influence. Well run courts are scrupulous about keeping all relevant information shared by all participants and to avoid ‘ex parte’ communications so no one has use of special knowledge not available to the others. Information has a power of its own to determine or influence outcomes. The idea of protecting due process poses special challenges to the hypothetical idea of supervision or of oversight within a judicial system, where all supervisory and oversight information would have to be kept rigidly apart from the justice side to avoid contaminating possible future due process in a hypothetical legal complaint from the same players. Can any organization - even a formal espionage organization - implement this degree of control over information that is internal to one part of the system in order to prevent seepage into another part of the same system?

These ideas are just a few conceptual and system reasons, why it is virtually an impossibility for the JB to construct a system of GAL oversight without violating very important traditional principles that are embedded in administering the law. This is not in any way to suggest that these principles are not vitally important and necessary in a court of law and need to be respected. It is simply to try to understand why these same respected principles that work so well in court render supervision of GALs virtually impossible in Judicial systems. It is the reason why many states have surrendered to the impossibility of doing supervision/oversight within their judicial branch and moved these activities to the administrative/executive branch.

Maine should do this for the same reasons.

For more information on the issues of Guardians ad litem we encourage you to read the 2006 OPEGA report. Provided is a link to a summary – OPEGA. In addition there is the report the Power of the Powerless which addresses many of the same issues. If you have had any issues with Guardians ad litem we encourage you to contact us for support at NationalGALalert@gmail.com or like us on Facebook for information.

No Management or Oversight for Guardians ad litem in the last 40 years

In 2006 OPEGA ( Office of Program Evaluation and Government Accountability ) produced a report highlighting some of the problems with the Guardian ad litem program in Maine. What OPEGA highlighted back in 2006 for Maine are issues that sadly can be seen in many states across the country.

One of the audit findings by OPEGA was that there is a lack of compliance, performance controls and evaluation systems. The Judicial Branch has not been competent when it comes to oversight or performance monitoring in the 30+ years prior to the report.  Six years later we find the Judicial Branch still without any quality controls in place to monitor and evaluate Guardians ad litem. There is no mechanism to identify GALs that are not complying with requirements or who are not involved in the lives of the child(ren). OPEGA also recommended the establishment of an independent oversight board that would ask for feedback on GAL performance. Being able to give feedback and having a place where this feedback, good or bad, is available for consumers would help in the matter of oversight and management. An Angie’s list of sorts would weed out under performing GALs or limit their business. Those that perform to standards would be rewarded for their ethics and behavior.

It was 30+ years before OPEGA investigated and reported on this issue. Six years later the situation has not changed except that there has been 6 more years of damage to Maine's families and children. How much longer will Maine's children have to wait for change to come? If we wait for the Judicial Branch to bring about change it may be another 40 years. Can we wait that long?

If you want to read a summarized copy of the 2006 OPEGA report click here.

A copy of the report done in 2012 – the Power of the Powerless which covers many of the same issues can be found here.

If you are or know someone who has had issues with a Guardian ad litem please contact us for support at NationalGALalert@gmail.com. We can also be found on Facebook.

Hand a blank check over to a stranger?

What do you know about your Guardian ad litem?

A Guardian a litem has been appointed to be a part of your custody case. Here is a stranger that is invading your life in the name of your child's best interest. This person is going to be making life altering decisions and recommendations to the court that will impact your life and that of your child for years to come.

What can you find out in Maine about this person's background and professional standing as a Guardian ad litem?

Nothing.

Maine is not the only state where the past of the Guardian ad litem is shrouded in secrecy.

You have to accept on faith that this person is going to perform their job  as a Guardian ad litem competently. You are going into this deal blind, because in many states there is not currently any form of oversight, accountability or consumer protection when using a Guardians ad litem service.

One simple and effective measure of Guardian ad litem quality and accountability would be for the Judicial branch to post online, any complaint or action against a Guardian ad litem. This might be for something as mundane as not fulfilling the continuing education hours, to more serious complaints on the family and superior court levels.

New Hampshire is one state that does this. New Hampshire also lists on the court's rosters whether or not a Guardian ad litem is under suspension. Although this approach is not perfect it does allow the consumer to know whether or not there have been past actions against  a Guardian ad litem and for what reason. It allows the consumer to decide whether or not being late on continuing education is a deal breaker for example. Or if there are other reasons or actions that might make you question whether or not this Guardian ad litem will be a good fit. It gives the consumer the ability to make choices and to do so from an informed perspective.

There is no consumer protection for the user of Guardian ad litem services in many states. There is plenty of legal liability protection for the Guardians ad litem themselves who operate in a very protected legal environment. The Judicial branch of many states needs to be using some standard data management tool for holding Guardians ad litem accountable by giving consumers online warning signals about a Guardians ad litem past performance. Making their past record transparent and public is one way of doing this.

Otherwise - with no public information - the Judicial branch risks marketing a defective or substandard product to the public - Again.

"In the child's best interest" a misleading and ambiguous standard for Guardians ad litem!

Although we may get hammered by opposing opinions (from Guardians ad litem), someone has to say it.  The current standard for child custody decisions, "in the child's best interest," is misleading and ambiguous!  It presumes that a Guardian ad litem using this standard has been anointed by God (and the appointing judge) and that the ensuing Guardian ad litem determinations are made objectively and above the contentious fray of a marriage dissolving. It assumes that one person, a Guardian ad litem, can read all of the many tea leaves and read only the child's "best interest" through the tangle of tea leaves at the bottom of the tea cup. It assumes that society will be better for such a ritual and such a formula.

It is wrong. And ... the whole notion of "in the child's best interest" as a court standard is deeply flawed conceptually, factually and legally. It also provides an irrefutable, unarguable weapon for any miscreant Guardian ad litem (or court) who chooses to abuse it. It is the ultimate authoritarian refuge that can be used to preclude any further exploration or discussion of issues. We are aware of reports of numerous abuses of "in the child's best interest". There is the refusal to disclose Guardian ad litem case records, the refusal to provide reasons behind complex, seemingly irrational Guardian ad litem decisions, the refusal to respond to client challenges about regulatory violations, the refusal to identify charges on a Guardians ad litem invoice of charges for service.  When challenged for enlightenment, the reply: Open discussion is "Not in the child's best interest!"  Sometimes this refusal to share data is reenforced with, "It might be dangerous." End of discussion. Over and out!

This kind of authoritarian claim that a Guardian ad litem, alone, using whatever resources, can determine what is "in the child's best interest", is misleading.  The child's wishes may be denied, and parental rights may be ignored.  Further there is no way of correcting the actions of a delinquent Guardian ad litem making such highly subjective decisions, other than a very expensive, time consuming, slow moving appeal to a higher court. Don't like it? Take your money and do an appeal to a higher court which created the unsupervised Guardians ad litem in the first place. No wonder there are so few appeals.  It is not about a lack of grievances, as some suggest. It is about the lack of money and energy and time to pursue a complex corrective action.

In the hands of a delinquent Guardian ad litem, the idea of "in the child's best interest" can be a devastating weapon that brooks no defense. It implicitly says: "Because I'm the Guardian ad litem, and I say so!"  The Guardian ad litem has no place in common law and shouldn't be setting custody standards in court!

Along with 'ex parte' discussions, "in the child's best interest" makes Guardians ad litem virtually bullet proof legally!

If you are having issues with a Guardian ad litem please contact us at NationalGALalert@gmail.com. Thank you.

The 'Dating Game' - Guardian ad litem style

Custody tensions can be hard enough without the 'help' of a stranger coming in and making recommendations based on a bizarre and abstract idea that has no clear foundation other than that person's opinion.

For the past several years that Guardian ad litem role expansion has been what Maine’s Justice Saufly (and others) call "mission creep" in the role of Guardian ad litem. Going beyond what the courts have mandated and beyond the scope of these Guardian ad litem's professional training. One area of "mission creep" is that a Guardian ad litem has no right to prescribe unusual social behaviors in managing the lives of divorcing parents and their child.

There is one case that has made its way through the court system where a Judge has made history. The Guardian ad litem working this case has essentially recommended that the parents (both of them have remarried) start 'dating' allegedly 'in the child’s best interest' (the Guardian ad litem has rewritten to state that monthly 'meetings' are recommended – whatever it is called by the Guardian ad litem it is not something the Guardian ad litem has any authority nor mandate to recommend). What is interesting is that this Guardian ad litem has no background in psychology and is stretching the Guardian ad litem role way beyond any statutes.. It is a Guardian ad litem as a law unto him/herself. As this Judge has endorsed the recommendation he/ she is in effect giving approval to court ordered dating for divorcees in the.

In Maine where this case was heard the rules for the Guardian ad litem section 3, 3.2, 12 (a) “Working effectively with other professionals involved in the assessment or treatment of the child” is something that can apparently be ignored by Guardian ad litems if it does not fit their personal opinion of the “child’s best interest” in any situation. This Guardian ad litem is imposing his/ her surreal bias on the situation and in opposition to the opinion of a licensed mental health professional, to say nothing of the wishes of one of the remarried parties. It is a do your own thing plan of action. This Guardian ad litem has no mandate nor training (nor does any Guardian ad litem in the State of Maine or in the US) to recommend this course of "over the top" action. What the goal of this situation is, is hard to understand - other than the claim that it may meet some need of one parent over the other. This and a totalitarian mind set on the Guardian ad litem's need to impose his/ her will. It would be laughable, as a bad joke, were it not so destructive of the lives of real people.

Should this bizarre recommendation actually be implemented – as it looks like it will - by the court; then both the Guardian ad litem and the court should be held responsible for this insane idea and lack of common sense. The Guardian ad litem should be dismissed - permanently. The Judge should be sanctioned at the very least if not removed. There is no room in any Justice system for such bad jokes or decisions.

An example such as this one is a strong cry for effective, long overdue oversight of Guardians ad litem. Those who would say that there is "no scandal" in the Guardian ad litem program must have an extremely tolerant view of scandal.

If you have had issues with a Guardian ad litem please contact us at NationalGALalert@gmail.com.

The Foundation of a House and GAL Job Descriptions

A job description is like the foundation of a house. If you have a good and well built foundation the house that sits upon it will also be strong with few problems. If you have a poor foundation (or none), your house will, shift and shake, lack stability and have a lot of problems. Job descriptions are used almost universally throughout business, industry, government and elsewhere to put boundaries on a job, to describe roles and responsibilities, to give lines of authority and accountability. They are a key management tool. In normal oversight, managers ask, "Are you following your job description? You need to improve this or that part of your job description."

Maine's Judicial Branch is currently attempting to tackle the issue of Guardian ad litem reform. A  committee has proposed a complex new procedure for complaints about Guardians ad litem; another committee is currently addressing the issue of Rules and Regulations for Guardians ad litem. But ... er, folks, excuse me, there is no job description for Guardians ad litem. We have before us a collection of a new complaint procedure and new Rules and Regulations - both in search of a job description. There is no formal description of a Guardians ad litem job to which the Rules and Regulations can be tailored. No roles and functions, no lines of authority, no lines of accountability that are universally a part of a regular job description. There is also the matter of training of Guardians ad litem. In most settings in business, industry and government, the job description is the template, or basis, for job training and education. Training flows from the job pattern and re-enforces the job's roles and functions.

Great work, everyone. Now we just have to find a job that all this stuff will fit! It's doing things backwards.

No job description explains the current Guardian ad litem training design. It presumes a base of knowledge for which there is no evidence and adds a smidgen (16 hours) of social work and lawyer. Lawyers and Mental health or Social Workers have very different bases of knowledge, skill and experience. As one educator told us; education of Guardians ad litem is one root of the current Guardian ad litem problem. The "tap root" is no job description. Without a job description, it leaves the Guardian ad litem in the position of being all things to all people.

The problem is that, while fixing the Rules and Regulations may make the house look clean and polished, these Rules and Regulations have no job description as a grounded  foundation. The foundation is missing. In most settings Rules and Regulations would normally provide direction about how to play out the content of the job description. They elaborate on where the boundaries are located, and rules imply a problem when boundaries are crossed or ignored. They can be specific items reviewed in supervision and in internal organizational corrective action or in external complaints. But in the JB system, there is no supervision of Guardians ad litem, which leaves Rules and Regulations as a sort of disconnected, pious hope. An amorphous, very ambiguous claim of Guardians ad litem working in "the best interest of the child" – something that every parent is also doing – is not a substitute for an actual job description. There is no formal statement that defines who or what a Guardian ad litem is or does, their lines of accountability, their roles and functions.

A reliance on "works in the best interest of the child" as a job description accords the Guardian ad litem a magic mantle of omnipotence and omniscience that no other job in America holds, a sort of high priest/priestess accountable only to God, and the appointing court. Maine is faced with a huge problem with the Guardian ad litem system that starts with these questions: what are Guardians ad litem, what do they do, how are they trained, who has oversight of them, how is this exercised? A final very important question: are children and families safe as a result of their actions? And (this afterthought) why is everyone paying megabucks for this service?

Simply reviewing and rewriting Rules and Regulations for Guardians ad litem with no job description, does begin to address the core of the problem – just what is a Guardian ad litem?


Please let us know at MeGALalert@gmail.com what you think is wrong with the Guardian ad litem system. To find out more about what is wrong visit us at meGALalert.blogspot.com.