It's basic meaning is "by or for one party" or "by one side" and is typically one sided communication with the judge. It strikes at the fundamental fairness of our legal system and those involved (judges, lawyers and litigants) are forbidden to do it. Ex parte communication violates our rights in a lawsuit to due process covered by the fifth and fourteenth amendments. Due process includes the right to notice of the complaint or charge, the right to be notified and to be present at a hearing, and the right to confront and cross examine witnesses. Due process also allows a person an opportunity to present their own evidence and witnesses in support of their view of the events.
If the GAL was appointed by the court and works for the court then how can communication with the judge be ex parte?
It is unfair for the GAL to communicate with the judge one on one. Judges should not conduct their own investigation of a case without the knowledge of the parties involved. In doing so this creates the appearance of impropriety and undermines the public's confidence of the judge and or judicial system. The judge can no longer act in a competent nor impartial manner. In other words when a judge and Guardian ad litem have ex parte communication the GAL is influencing the decision of the judge without cross-examination of her facts. It is in a sense a secret, private trail that is being held before the actual open courtroom trial. When the parties in the custody dispute meet they looking to the judge for a fair, unbiased and just decision. One which the judge can not make if there has been prior, private, unchallenged communication that had been held between the GAL and judge.
Back in 2008 the GAL trade organization, The Maine Guardian ad Litem Institute, actually advocated through their board members sitting on a judicial branch committee ex parte communication in family court cases. Thankfully this was not enacted into law. It would have damaged the common law basis of open due process with all facts shared by all parties in a court trail. It would have been harmful to everyone in the process.
What are your thoughts when a family in a custody battle begins a campaign designed to influence the judge with a series of ex parte phone calls and letters used to disparage the other parent and that do not end even long after the judge has informed the family that such communication is not allowed, or condoned? How do you feel about that type of ex parte communication? Is that okay?
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