In Ohio - Judges Routinely Violate 5th Amendment Rights of Citizens

“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 - is 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, the "owner" of the information has 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.

The Judicial Branch Dilemma in GAL Management

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.

Ohio should do this for the same reasons.

For more information on the issues of Guardians ad litem we encourage you to read the Maine 2006 OPEGA report. This is an excellten resource for what is typically wrong with GAL programs. 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.

$2500 is just the begining of a life long debt to your Guardian ad litem

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 deceptive 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.

Guardians ad litem and the Safety of Our Children

In the hands of a Guardian ad litem are our Children Really Safe?

It strikes us that if one uses a "in the child's best interest" standard, that an important baseline consideration is: "Is the child safe?"  Clearly there are additional issues like the child's well being, its opportunities for normal, physical and psychological growth and development, its social and moral development, but central to society's interest is safety.

We have been appalled by reports of Guardian ad litem recommendations that propose assigning a child's custody to a parent with an extensive history of alcoholism, prescription  drug abuse and felonious legal issues - especially when there are other, safer, better choices.  In these cases there has been no assessment of child's safety or of the older idea of "parental fitness".  The new, hip view is that at all costs the Guardian ad litem should avoid "social or cultural bias".  In bending over backwards to meet the avoidance of social or cultural bias, the "broad-minded" Guardian ad litem must give due consideration to high risk parents, who might have been considered "unfit" in previous years.  Has the parent showed up drunk for an interview with the Guardian ad litem?  Have they dilated pupils or do they stagger?  If not observed by the Guardian ad litem, and if they say they are clean, they are innocent until proven guilty.  It is simple, blind denial, and it places "the best interest of the child" at serious risk.

We feel that the Judicial Branch should demand primary, professional  information to back up these recommendations.  What do the physicians, psychologists, drug counselors, parole officers have to say?  What about family members (on both sides)?  What about independent psychological testing for fitness to parent?  What about an in depth assessment of the biases in favor of not showing bias to cultural or social issues?

There is another concern that comes out of "the child's best interest" standard, mediation.  Isn't mediation a conflict of interest for a Guardian ad litem?  If a Guardian ad litem stands for "the child's best interest", how can that Guardian ad litem broker a "deal" with the parents?  Doesn't "best interest" have to be separate from: "I want; you want?"  Carving up the child for the parents is not necessarily in "the child's best interest!"  Parents are frequently told by Guardians ad litem that whatever they agree to will be recommended to the court.  Mediation is one of the "mission expansions" that has gradually been added to the Guardians ad litem statutory role.  It generates huge billable hours.  Can a Guardian ad litem, as an arm of the court, be an unbiased mediator?  In our opinion the legal power behind a Guardian ad litem precludes a free, open exchange necessary for true mediation.  The Guardian ad litem is "armed" by his/her appointment in these transactions, and wearing a "gun" precludes free discussion.

As old teachers are wont to say to children, "We can do this the easy way or the hard way, the choice is up to you."  But Guardian ad litem clients aren't children!  

We ask ... is this 'modus operandi' "in the best interest of the child" or in that of the Guardian ad litem?

The choice is up to you.

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

Judicial and Guardian ad litem abuse in Ohio

And the impact that it has on our children.

The link we have provided is to an interview given by the Director of the Center for Judicial Excellence. They are an advocacy group that works for Judicial and Guardian ad litem reform based out of California but with a national focus. The interview is amazing in that the Director talks about Judicial and Guardian ad litem abuse and how it impacts the lives of our children. How evidence is ignored by the court and that we are creating a social cost to society - people and more importantly the children that Guardian ad litems are supposed to represent are growing up with a mistrust of the court system. This because quite often Guardian ad litems do not advocate for the 'best interest of the child' or what is safe for our children.

There needs to be change to the system that creates and manages Guardian ad litems in the state of Ohio. Oversight can not be had by the Judicial branch nor by trade organizations supporting Guardians ad litem in the state

Click this link: Center for Judicial Excellence and press the green arrow to start the interview. The interview lasts just under 10 minutes.

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