“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.
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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
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thoughts on this subject please feel free to respond.
