Tuesday, September 16, 2014

Public Comment: Report of the Family Division Task Force (FDTF), 2013

This is an interesting report in which the growing 74%pro se’ problem is acknowledged, but it seems to despair of a solution. Maybe in time. Maybe never. But - we’re thinking about it and working on it. It’s just that the thought and work hasn’t been successful in containing the growth of the problem, in designing an approach, much less, finding answers to the problem.

It is our impression that the  current status quo, financial incentives  to the Divorce Industry, are mammoth! Seriously analyzing the ‘pro se’ problem, a serious legislative audit or serious problem solving might, God forbid,  “kill the goose that laid the golden egg” for the Divorce Industry! After all, as quoted in the Family Division Task Force Report, 86% of family court cases have only ONE LAWYER (see page 20 - IX. Addressing the Increasing Unrepresented Population; A. Court Resources for Un-repsented Litigants: "The number of cases before family law magistrates in 2012 with one or fewer attorneys approached 86%")!

Imagine that one lawyer (in the 86 % of cases) opposing a ‘pro se’ party. As work, it is a ‘slam dunk’ as if ”like taking candy from a baby”. Very easy money. Two “champions” in the legal arena; one with a full armamentarium of legal weapons, knowledge of legal protocol and procedure - the other virtually naked and unarmed. Care to put a little money on the probability odds of the Pro se winning? We are not saying that ALL ‘pro se’ parties lose, but the “odds” are not in their favor in these situations. The playing field is tilted in favor of the represented party.

The ‘pro se’ party in cases we know of is totally frightened of the court, intimidated by the age old etiquette governing functioning in court.

Let’s consider a few generic issues: Unreliable help from the court in serving papers and in compiling other necessary paper work. No full understanding of the Rules of Evidence, Rules of procedure, no knowledge of how to frame the case for presentation, no courtroom experience in examining witnesses, no techniques for dealing with almost constant barrage of, “I oppose” actions from the attorney for the other side. These are just a few (of many) items to consider. Then there is the matter of self-esteem and feeling unbelievably stupid in the alien legal culture of a family court (and this is doubly a problem for foreign litigants). Add to the ‘pro se’ nightmare the minimization of the problem (with good $$$ reason) by the bar and judges who vary greatly concerning: impatience, anger, put-downs, scoldings and kindness, patience and the very limited “help” from the bench that can be offered without challenges of  impairing their  “judicial impartiality”, fairness, “due process”. It is about ‘pro se’ FEAR, EMOTIONAL PAIN AND FEELING VICTIMIZED  in our Maine Family Courts.

Sorry, but that’s our reality check for readers of this document, and, remember, you asked for “public” comments. You might say that this is a ‘pro se’ comment. We are not a lawyers and no lawyer shaped our expression of concerns.

The ‘pro se’ problem more than anything else demonstrates the extreme (and growing) breakdown of justice in Maine courts and the near shameless financial opportunity afforded any lawyer who opposes a ‘pro se’ litigant! It is no wonder the “divorce industry" isn’t rushing to correct this embarrassing problem!

WE SUGGEST: We would suggest that the Court, the Governor, the Legislature submit a bill in January 2015 for an OPEGA Audit of  ‘pro se’ in our Maine courts. Let OPEGA look at: the numbers of cases, the growth of the ‘pro se’ trends, the experiences and feelings of ‘pro se’ litigants, the outcomes of their cases, the public perception of attitudes of family court judges about ‘pro se’, judges recommendations for change.

We would also suggest that an audit consider the question of what value do family courts provide to those going through divorce and custody?  Are family courts adding anything to the welfare of our Maine children and families? Or are they taking away?

Idealistically, we would imagine that these questions and others should be of interest to all three branches of Maine Government and to those involved in divorce and custody actions.  It would answer the “problem vs no problem” debate with facts and evidence.



MeGALert is working to bring about change and reform to Guardians ad litem and the Family Court system. If you have been involved in the Family Court process that makes no sense we urge you to contact us at MeGALalert@gmail.com or find us on Facebook for support and help.

Monday, September 1, 2014

A Response - to the Proposed Repeal and Replacement of Maine Guardian ad litem Rules

Hon. Leigh Saufley
Chief Justice
Maine Supreme Court


Dear Chief Justice Sauflley,

I am responding to the request from the Judicial Branch for comments from the public  on the proposed “new” Rules for Guardians ad litem. In my opinion, they are badly off the mark, if their aim is to help the majority of those public consumers, who might use them to understand how GAL’s function and how to make a complaint about a GAL’s defective performance. Perhaps unintentionally, they seem to distort the aims of the Maine legislature and the Governor who created the law in 2013. The Dutremble law was aimed at clarifying Guardian ad litem functioning with appropriate boundaries and protecting consumers of Guardian ad litem services from abuse by GAL practitioners. The proposed “new” Rules, as I read them, shift aim and focus of the 2013 Dutremble law, and, by proposed regulation seem designed to defend and protect Guardians ad litem, as members of “the legal guild”. Self-represented consumers of service are out of the picture altogether.

The proposed “new” Rules are lengthy (77 pages), often ambiguous and subject to many escape clauses. There are many statements in the Rules that are followed by exceptions to the rule. This oppositional duality throughout the Rules  neutralizes and confuses the intent, meaning and strength of the initial rule, and it probably reflects the anxiety of  “stake holders” on the working committee, who created the document. They may not want to be hampered or hemmed in by any Rules.

The section dealing with consumer complaints (see page 35 RULE 9. Guardian ad litem Review Board Complaint System) about Guardian ad litem services is written in complex legal language, full of references to other laws, unfamiliar to the general public. It prescribes a labyrinthine, multi layered procedure for making a complaint. Even relatively trivial, minor complaints must follow this protocol. As I read it and imagined using it myself in a ‘pro se’ effort, I felt shut out and stymied. The complaint procedure is written by lawyers for lawyers. It also proposes that all consumer complaints be managed by the lawyers'’ “guild”, the Overseers of the Bar, considered a formidable entity by most of the public. The complaint procedure is an airtight, legalistic, time-consuming, intimidating piece of work that virtually no untrained, unrepresented “consumer” will be able to use to complain about service. Preventing complaints from self-represented members of the public appears to be its purpose. Kill all public complaints with legalistic complexity. "Pro se" be damned, is the message I read!

The most troubling problem is represented by the authorship of the proposal “new” Rules for GALs. It appears to be the work of a “Stakeholder’s committee”, almost exclusively members of the powerful “divorce industry”. The authors show no consideration for how a ‘pro se’ (self represented person) is supposed to use the arcane, complaint “tool”. As you reported to me earlier this year, a startling 74% of family court users are ‘pro se’. It is being proposed by “stockholders”, who authored it, that this 74% majority be given a complex, “legal tool” that they will be unable to use in making a complaint about GAL service. The Rules, as a tool, by their complexity, would exclude the majority of public users from making a complaint on their own. Shouldn’t ‘pro se’ persons also be considered significant “stakeholders”? Their stakes are their children, their time and their life savings; not professional financial advantage. Their kids are priceless to them (and to all of us) and represent future, valuable human resources for Maine. Why are ‘pro se’ stakeholders denied a seat at the table that would reflect their proportional, numerical dominance in courts? It might be viewed as an exclusionary problem of vast proportions that needs correction in the interest of public fairness, and in the interests of reality. It is an awkward commentary on family courts in a democratic society.

We need to understand the present reality that Family courts at this time are no longer  the exclusively purview of an  elite, professional group of the legal profession when 74% of users are self-represented non-lawyers! It is time for everyone to awaken to these startling facts and address the  major, unstoppable systems change that is going on right now!

It also should be noted that the public complaint protocol is the only “quality assurance” mechanism for the public governing the actions of Guardians ad litem. Without supervision, with just 18 hours of “education”, with quasi judicial immunity, with no meaningful “oversight”, a complaint from a consumer is the only way to request  major or minor “corrective action” for a malfunctioning Guardian ad litem. If this procedure is so complex as to be unusable by non-lawyers, Guardians ad litem are essentially in a position of being granted secular infallibility by the Judicial Branch. One has to ask rhetorically: “Don’t GALs ever need some form of  correction; are they always “perfect?” Can’t one find a more responsible way to correct and improve their function?

My opinion is that the Judicial Branch needs to go back to the drawing board and begin again in writing new Rules for GALs. It needs to include proportionally the biggest group of players in family courts, the 74% ‘pro se’ users, on any planning committee addressing “officers of the court”. It needs to approach the whole issue of GAL management in a much less defensive, overprotective manner. It needs to listen to and care about the  systemic changes catalyzed by amazing numbers of ‘pro se’ representatives. The present document is “tone deaf” to ‘pro se’.  Is this its aim, or is it impossible for the Judicial Branch to escape the political influence and power of the divorce bar?

We sincerely hope this document can be rewritten in tune with current realities, and with participation of those who are major users of the GAL system. Would it help the Judicial Branch to overcome the powerful, internal, self-serving, lobbying politics of the “divorce industry Bar”, if there were to be  grass roots legislation empowering ‘pro se’ representatives on JB committees and throughout the family court system?

Your 74% ‘pro se’ statistic is a powerful number that  cries for legal fairness and appropriate democratic empowerment!

Sincerely,

Jerome A Collins, MD
Kennebunkport, Maine

For further information on the Family Court and divorce industry crisis please email at MeGALalert@gmail.com or find us on Facebook.


For further reading:

2014-05-28 PROPOSAL FOR AN AUDIT OF ‘PRO SE’ REPRESENTATION IN MAINE FAMILY COURTS


2014-03-18 Maine Voices: We must work together to ensure justice truly is for all in Maine - a response

Friday, July 25, 2014

1999 Proposed rules for Guardian ad litem

Anita St Onge - unofficial spokes person to address the committee

Terry Hayes, David Kennedy, Ken Altshuler were also mentioned as members who participated in drawing up the rules for GALs. This audio was provided to us by the Cleaves Law Library and dates back to 1999. The library has been helping us locate rules/ standards and guidelines that were in place prior to 2000.

It is interesting what the concerns were back then (these are stated in the first 3 minutes of the audio). The complaint process is mentioned and there is an interesting comment/ concern about how a complaint would filter down to the underlying profession of a GAL.




The audio may be found here. The format provided is mp3.


Please comment by either posing here or emailing us at MeGALalert@gmail.com.

Thursday, July 17, 2014

Maine Guardian ad litem - Proposed Repeal and Replacement of the Rules

NOTICE OF OPPORTUNITY TO COMMENT

STATE OF MAINE
SUPREME JUDICIAL COURT
NOTICE AND OPPORTUNITY FOR COMMENT

Proposed Repeal and Replacement of the
Maine Rules for Guardians Ad Litem

Comments due on or before September 12, 2014, at 4:00 p.m.

The Maine Supreme Judicial Court invites comments on a proposed repeal and replacement of the Maine Rules for Guardians Ad Litem. The proposal comprises the work of both the Guardian ad Litem Stakeholders Group, chaired by Hon. Robert E. Mullen, and the Guardian ad Litem Task Force, chaired by Hon. Warren M. Silver. The Supreme Judicial Court has not yet undertaken a detailed review of the proposals, and the proposals are presented now for public comment to allow for the greatest amount of input and comment before the Court undertakes its review. Following the period of public comment, the Court anticipates holding a public hearing. The proposed rules are posted on the Court's website.

Any comments must be filed with the Clerk of the Supreme Judicial Court by Friday, September 12, 2014, at 4:00 p.m. Comments in writing should be mailed to the address below. Comments sent via email may be in the text of an email or in an attachment to an email, addressed to lawcourt.clerk@courts.maine.gov. If the comments are in an attachment, the attachment must be a document in portable document format (.pdf). The Clerk's Office will acknowledge receipt of the e-mail via a reply e-mail.

All comments must contain (1) the name, mailing address, and telephone number of the individual submitting the comments; and (2) the name, mailing address, and primary telephone number of the organization (if any) on whose behalf the comments are submitted. An individual need not be an attorney to submit comments on behalf of an organization.

Dated July 16, 2014

Matthew Pollack
Executive Clerk
Maine Supreme Judicial Court
205 Newbury Street Room 139
Portland, Maine 04112-0368
(207) 822-4146

If you want to comment but want to do so anonymously we ask that you email us at MeGALalert@gmail.com and we will submit your comments with any identifying information redacted.

Further resources:
2013-02-08 Deputy Chief Judge Robert E. Mullen says that Guardians ad litem are wonderful

2014-04-19 Do the Maine Board of Overseers and Stakeholders have your Best Interest?

Friday, July 4, 2014

As a Guardian ad litem - What Would You Do?

Imagine you are a Guardian ad litem tasked with making a recommendation on a case and you have the following to deal with:

One member has just accused the other of molesting the child of this divorcing family. You recommend that the accused has only supervised visits with this child. The Family Court Judge backs up your recommendation.

But there is a twist

You see the accused has another child with another partner. What do you do?

1. You do nothing - that child is not a party to the divorce.
2. You recommend that the accused parent can only have supervised contact with both children because that parent poses a threat to both of them.
3. You have Child Protective Services come in and determine whether or not the accused is really a threat.

Tell us what you would do - Either add a comment here or click this link which opens up in a new TAB or window.

The results will be published on Monday 7/8/2014

Sunday, June 29, 2014

According to Family Court - Field Trip to Bar Late at Night is Good for Child

File this under lack of Common Sense within the Family Court System -

As a parent if your four year old child came to you and told you she was scared of being in a situation your ex put her in what would you do? If your child was taken to an adult environment, a bar, late at night where there was loud music, alcohol and intoxicated adults involved. What would you do?  Would it make a difference if you were involved in a divorce and custody battle? It might.

Most parents would try to take some kind of protective action for their child. If a Guardian ad litem was involved – you would complain to them; after all, that is what they are put in place for. Clearly a child (no matter what the age) being put into an inappropriate adult situation is not in the child’s best interest. Nor does the child feel emotionally safe in these situations. Common sense would dictate that this child (or any child) should be protected and removed from this situation or environment.

The child in question told her father that she felt scared being in the bars to which she was taken by her mother. She witnessed fights and yelling, and her mom's boyfriend being pushed around. “Bad words” were often being said between people. When the father brought this to the Guardian ad litem's attention (the person who is supposed to be looking out for the best interest of this child) – the Guardian ad litem stated that the father simply did not trust that his four year old daughter was in good hands. The father, concerned for his daughters safety, continued to make his point and express his concern. His concern was not taken seriously by the Guardian ad litem. Instead of investigating whether or not the situation of a child’s late night visit to bars was good for the child, this Guardian ad litem continued to blame the father for trying to cause trouble.

How are we to believe, as this Guardian ad litem and the Judge would seem to be doing, that this little girl's 'best interest' was served by late night visits to bars that she found frightening? What about the child's emotional safety? Is this kind of place a good moral environment for children? To say the least of what this child is learning from the experience? We would say that common sense was not used by the child’s mother nor by the Guardian ad litem for that matter. Sadly, this type of poor judgment is frequently seen with quite a number of Guardians ad litem in the State of Maine. Examples like this are the reason why there is now - and has been - a very real need for Guardian ad litem and Family Court reform.

MeGALert is a grassroots organization dedicated to supporting parents who have been abused by the family court system. In addition we educate and promote reform through legislation - both here in Maine as well as nationally. We would encourage you to contact us at MeGALalert@gmail.com and tell us your story. In addition we may be found on Facebook.

The Power of the Powerless - 2012 by MeGALert

Family Court Survey - We want your opinion regarding the experience you had in Family Court.


Friday, June 27, 2014

A Basic Tool Kit for Grass Roots Family Court Reform

We have been asked by many people how we got MeGALalert, our Family Court and Guardian ad litem reform program, started and what beginning grassroots activists should do to get going?  We grew our program, MeGALalert by stages and degrees, learning by trial and error as we grew.  We quickly set two fixed goals: (1) education of the public about the need for reform of family courts and Guardians ad litem, and (2) legislation to produce change.  We feel that you can’t have legislated change for these dysfunctional systems without an enlightened, aware public that will support and push for change.  Legislation also requires that we  educate legislators about the family court and Guardian ad litem problems, and also that we help voters connect with legislators and- as constituents/voters - express their views and their wishes. Family court systems  are not anything that can be “fixed” quickly, because there are huge systemic problems and powerful internal forces that support  the dysfunction of family courts, and that keep dysfunction alive, well and growing. Long ago, we were instructed by one sophisticated  lawyer: “Follow the money!”

What we are outlining is a well planned systems intervention in a massive system, and it cannot be done quickly or without a well designed strategy and tactics, nor can these be effective without tools for intervention in all parts of the system. Obviously, this is a complex undertaking. We are always glad to share our thoughts and our approach, but to do so would take more than a simple, single blog posting.  We’ll start by giving a brief list of important generic systems intervention “must have”  “tools” that you may find useful in changing family court systems:

1. A blog or two (or more) with different focuses that will serve multiple purposes: give news, present issues and problems, make proposals for change and allow for public "conversations".

2. A Facebook page dedicated to court reform in your state, which can present more short-term "reform news" and sharing.

3. Building a base of credible political supporters, larger numbers of both friends and “victims” of the family court system.  E-mail addresses (and list-servs) for this group are critical, precious, invaluable .  One rule to follow: ALWAYS BLIND COPY (bcc)  MASS MAILINGS FOR PRIVACY).  Telephone numbers and physical addresses are useful also.  We started with our family court story (disaster) in a local weekly paper that got the attention of other family court “victims” who contacted us - and the rest is history as the numbers grew and grew.

4. Once you get stared, a core group of friends with a "work ethic", who can be counted on to help with some of the "heavy lifting".  Volunteer manpower, which can stay on top of what's happening in state government that may impact on users of family courts.

5. Getting to know your State Rep and State Senator and continuously educating them on the court reform issues is critical.  Getting to know other legislators, especially those who have gone through divorce and custody horrors.  “Victims” of family courts in the legislature are “golden”.  You also need to know which legislators are your enemies and “frenemies” , Which legislators will sabotage your efforts and support the ‘status quo’?  HINT: look for legislators who are lawyers!

6. Getting to know your state Governor and your Chief Justice.   Governors can submit bills and can veto bills, but they too need education.  Justices often want changes in the courts but they are constrained by their political base: the state bar and state lawyers who live handsomely off of family courts.  They hear appeals form family courts and their judgments become case law.

7. Building relations with the all elements of the media.  Know reporters, feed them stories.  Many court reporters are intimidated about journalistically challenging the courts and getting “shut out” of court news thereafter, but sometimes your news may tempt them out of timidity.  Small, local, weekly papers, we find, are most open to reporting our experience - and people do read them. Give them stories. This got us going. Don’t forget social media in all of its many forms.

8. Organize intimate, small showings of "Divorce Corp", the DVD, it is very educational, packs a punch and ought to be a "must see" for legislators and government decision makers.  It is a great “tool” for quick information and attitude change.

9. Make your most important goal: public education about the largely unknown scandal that is family courts in America.  Without extensive education of the public you go nowhere.

10. Communicate, communicate, communicate.  Keep everyone who writes to support you in the loop, up on the news - good and bad.  Answer ALL e-mails asap.

11. Don't worry about money or setting up a nonprofit.  We've done it with no money and no corporation. Money and non-profits have their own problems and politics. We've done it with PEOPLE, who are FRIENDS. The most successful movement that produced massive political change was created by Vaclav Havel, former, Czech president, Nobel prize winner, writer and political dissident.

Finally, don't be discouraged by setbacks.  It is going to be a long term project. Family courts have solid support of a huge, wealthy industry ($50 billion), the “divorce industry”, these lawyers, like the “robber barons” of old, are not going to yield quickly or easily. But ... we have human and moral "right" on our side, and, once we connect, there are more of US than there are of THEM! Vaclav Havel called it “The power of the powerless”.

In the long run, if we keep at it , like others before us who fought injustice...

"WE SHALL OVERCOME ... SOMEDAY..."

MeGALalert can be reached by emailing us at MeGALalert@gmail.com or by finding us on Facebook. There is no magic bullet that can be used to help you with the issues you and your family are facing. We offer support and help in dealing with the family court system.

Tuesday, June 3, 2014

Alicia Napalan - Money means custody in Family Courts

By Alicia Napalan
West Plains, Missouri

Recently I went through a divorce. I was unable to afford an attorney, while my ex-husband was. I was denied legal aid, twice, due to a lack of funds. My husband was granted full custody of my four year old son. I have one weekend of supervised visitation. I have to pay him $100 per each visitation. As well as $3500 for his attorneys fees in 60 days. All because I was expected to have the same amount of knowledge in representing myself as someone who spent years in law school. I have a job, a car, my own place, I don't do drugs, and my son wasn't abused. Clearly, justice can't be done when one party is represented while the other is not.

In the large amount of time I spent in court, I saw crying mothers over and over, asking the judge what to do, and repeating that they can't afford an attorney. And the judge is only allowed to respond with, "you are expected to know, if you represent yourself. I cannot give you legal advice." The Legal Service Corporation is largely responsible for the funding for state legal aid programs. Even though the budget is 350 million, with supplemental funding from LSC, the total amount of legal aid available for civil cases is still grossly inadequate.

According to LSC's widely released 2005 report "Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low-Income Americans", all legal aid offices nationwide, LSC-funded or not, are together able to meet only about 20 percent of the estimated legal needs of low-income people in the United States.

I lost custody of my child, because I could not do enough research on my own, to stand up against an attorney who had been in practice for years. Hard solid evidence I had was not accepted by the judge because a lack of foundation. 90% of what came out of my mouth was objected to. All on top of the fact that I have social anxiety, and fear of speaking to people and crowds.

I'm requesting that Congress grant more funding for LSC so that more low income families may have a chance at justice. So those extra funds can trickle down to all State Legal Aid programs. It wasn't a piece of furniture I was fighting for. It was my child. And I lost him because I lack funds.

I'm terrified of the emotional Impact It will have on my child being away from me. If I miss my deadline to pay for my visitation, my ex-husband refuses to let me see him. And its getting increasingly harder to make that deadline because he is garnishing my wages for the attorneys fees the judge granted I pay him. I believe with an increase in funding for legal aid services, more families will have a chance at justice, and be spared the same hardships I'm going through.

Alicia Napalan can be found on Facebook. Alicia represents a significant problem that is growing daily. Access to Justice within the Family Court system. The national average of 'Pro se' representation is over 50% with some states over 75% of parents representing themselves (Maine 74%, Connecticut 82% and New York at 85%). This is a two tiered system of justice between the haves (those who are able to afford legal representation) and the have not's (those who are not able to afford representation). MeGALalert is trying to bring about reform to the Family Court system. If you are interested in helping then please contact us at MeGALalert@gmail.com of like us on Facebook.