Friday, April 13, 2012

Let's end all 'ex parte' parties between Judges and GALs

     In our view, this is our most important recommendation for Guardian ad litem reform.  There would be an enormous positive ripple for children, families and courts from this no cost change in statutory regulation prohibiting all 'ex parte' between judge and GAL.

     But ... exactly what is 'ex parte' communication between GALs and judges?  Though it is complained of from Maine to California, most people don't know about it, even those families who may wonder why they are getting blindsided by apparently out-of-nowhere judicial decisions, when they appear in court for a hearing.  'Ex parte' communications of any sort are exclusionary, private, out-of the courtroom communications between one of the parties and a judge, and they are almost universally frowned on by the traditions of common law.  The reasons for 'ex parte' communications being frowned on are because a private conversation with a judge is liable to impair judicial impartiality, the very cornerstone of judicial fairness.  It presents one viewpoint only, that of the GAL- in our consideration of this issue, and, as we know, family matters are complex and there are multiple viewpoints that need open consideration.

     More importantly, 'ex parte' communications between a GAL and judge can function as a hearing before the real courtroom hearing.  Maine statutory regulations permit GALs to do 'ex parte', with the proviso that the parties are informed after the fact about the topic of the discussion.  But ... there are exceptions to the requirement to inform the parties.  'Ex parte' may be done secretly, if the GAL claims that such secrecy would be "in the best interests of the child"!  This subjective formulaic claim of "best interest" is one that is wide open to corrupt practices and abuse.

     'De facto', secret 'ex parte' communications can transform the GAL into a paid, unaccountable, secret informer of the court.  It is reminiscent of the distasteful human rights violations of the Inquisition and the m.o. of secret informers during the French Revolution's reign or Terror.  It is anti democratic, it goes against common law traditions that respect fairness and openness in a trial.  Other states are addressing this issue, and their stances are worth considering.  It is an abhorrent practice that needs to end.

     But it will not end as long as one aspect of the GALs role is conceptualized as "the eyes and ears" of the judge!  Judges should not use GALs as private eyes!

15 comments:

  1. I was under the impression that what ever is said to the judge the judge is supposed to let everyone know. So if a conversation is had between the GAL and Judge and no one else knows about it does not seem all that fair.

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  2. The statutes forbid 'ex parte' conversations between GAL and judge, but they may take place, if "it is in the child's best interest. They are supposed to inform the parties of 'ex parte' and the topic of discussion, unless it is "in the child's best interest" not to do so. The situation is riddled with so many exceptions to the rule that the regulations are meaningless.

    From our perspective, it amounts to "go ahead and do 'ex parte', as long as you say, "in the child's best interest!" Or ... it might be dangerous.

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  3. The idea that this behind the scenes talk with the judge by the gal seems out of place unless the other parties involved are made aware after the fact. For the judge to have had this kind of conversation and not let the other parties involve know strikes me as not being impartial. How can the judge then make a fair and just decision on the case? He can't at that point. Even if this has happened once the judge is no longer an impartial player in the proceedings. I wonder how much this happens?

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  4. Talking with the judge and then that is kept from the parents seems like something out of the Soviet era. Where neighbors spied on neighbors. How can having a private conversation with the judge be in a childs best interest?

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  5. Any type of 'ex parte' communication has the potential to compromise judicial impartiality, even when it is reported to the parties. When it isn't reported and goes on secretly, the GAL becomes a spy, or secret informer, which should be forbidden in any democratic society. The irony of secret 'ex parte' communications is that clients are paying for GALs to work as "private eyes" for judges!

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  6. I am sorry but I do not understand what 'ex parte' communication mean? I see it all over the place. I do not understand.

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    1. 'ex parte' is just a fancy word for behind the scenes, private conversations between your GAL and a judge. They are frowned on in legal circles, because they have great potential to bias a judge in favor of the GALs's point of view. They turn the GAL into a an off the record, court informer, and they wreck the fairness of any future court hearing.

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  7. Let's just say that you have a GAL who has obvious bias towards you; thinks you are a low life and your visits with your child should be minimal. If the GAL has a private 'ex parte' conversation with the judge and convinces the judge, how is an actual court hearing apt to go? Bad! In court the judge goes through the motions but clearly acts like you are a low life and judges accordingly. Where did he get his opinion? Not in court discussion. Not from your lawyer. Guess? You've been sandbagged by 'ex parte'.

    It needs reform for the sake of fairness. No ex parte.

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  8. Is it true that some GALs (MEGALI?) wanted to push for new regulations that would legalize ex parte conversations with GAL and judge?

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  9. I had heard that too. It is hard to believe. It seems like it is a chance for a GAL to score points with the judge, and may be in the GAL's best interest. But are GALs scoring points with the judge in the child's best interest?

    Don't question. Everything a GAL does in in the child's best interest! Even when they don't follow statutes or have inappropriate relationships with clients or take on non-statutory activities.

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  10. So, what if, say, a grandfather in a case (a case in which he is not legally involved) has had numerous private conversation with the judge...is this considered "ex parte"? What is your opinion on this?

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    1. It would be 'ex parte' if the judge did not let the other parties to the matter know that these conversations happened. Under judicial cannon 3(A)(4) (adjudicative responsibilities):

      A judge should not initiate, permit, or consider ex parte communications or consider other communications concerning a pending or impending matter that are made outside the presence of the parties or their lawyers. If a judge receives an unauthorized ex parte communication bearing on the substance of a matter, the judge should promptly notify the parties of the subject matter of the communication and allow the parties an opportunity to respond, if requested.

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  11. Sounds like the judge is at fault here too, Judges do not usually take calls or enter into conversations with people who have a connection of any kind with a case- and certainly not "repeatedly". Complaints can be made against any judges who engage in the practice you describe. But you'd need facts, not just unfounded allegations.

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  12. Have your lawyer file a complaint for you.

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  13. The judicial cannon that you quote above is helpful. In practice, judges seem to have latitude (or take it) in how they interpret this canon, because 'ex parte' communications are a common complaint from lawyers all over the country.

    One approach to oversight of 'ex parte' would be to establish a computer log of all one-on-one meetings between judges and GALs to be kept by the clerk of the court. The Judicial Branch would audit these computerized records monthly and keep comparative statistics between judges, courts,and GALs.

    It might be considered an infringement of a judge's m.o., but 'ex parte' has an extremely damaging effect on the fairness and impartiality of the court system. 'Ex parte't is an affront to common law traditions. Oversight of GAL/judge communication would restore faith on the part of parties to a divorce that the only action relating to their custody issues is what happens in the actual courtroom.

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