Caveat emptor - Let the buyer beware in Divorce Industry and Courts of Maine

We have become fascinated by a variety of supposedly routine, signed formal agreements (or contracts) between Guardians ad litem (GALs) and consumers, which might be called "boilerplate" contracts.  These contracts are in writing, frequently follow a standard, stereotyped formula, and are widely used by GALs when they start to work with clients (parties) on a case.  More often than not, there is no effort made to fully inform those who sign such contracts about their downside.

Are these actions truly “contracts”, entered into willingly, with fully  informed consent between two or more parties, or is a “boilerplate” agreement a defective legal instrument that may endanger those who are forced to use it?  The very same boilerplate contract may be seen by legal authorities in two quite  different ways: (a) as a simple, legal, interpersonal agreement in which “ignorance of the law is no excuse”, and ‘caveat emptor’ applies? , or (b) a defective legal instrument foisted on an uninformed party with potential for significant personal harm (or a ‘tort’) involved?  The exact same contractual understanding can be seen by the legal profession as having two quite different legal points of view; a valid contract or a ‘tort’.

Very recently, there has been a great deal of public (and professional) interest in these "boilerplate" contracts that are cropping up in many industries.  They are especially common in the "divorce industry".  There is considerable debate whether they are valid contracts, because frequently those who sign these documents don't understand them, do not realize the full, potentially harmful consequences and may feel forced to agree without adequate debate, questioning or understanding of what they may be getting into.  This becomes painfully evident when those signing such an agreement realize only after the signing, as the contract plays out,  that they have agreed to actions which may be harmful to them or their interests. The client wakes up to the danger in the "contract" only after they have gotten into it, and is told, "Sorry, it's too late!" "You agreed, here's your signature!"  ‘Caveat emptor’!

The contractual issues that are getting a fresh look in some law schools are:
(a) The marked inequality of knowledge of the parties to the contract.  Those who work in the legal profession usually have extensive training in the nature of contracts; the average consumer frequently has very limited knowledge of the nature or legal basis of contracts.
(b) There is no attempt on the part of those issuing the contract to obtain fully "informed consent" from the signer.  How may this contract work against you?   What are the unfavorable things that could happen?  How may you terminate it?  Are you agreeing to this "contract" with your eyes wide open?
(c) Can a "boilerplate contract" without  "informed consent" be considered a defective (or even harmful) consumer product that exploits the public and that can be harmful to those who "buy" it?  Some legal teachers are examining "boilerplate" as a "tort", or harm; rather than a dispute under contract law.  Does a "boilerplate" contract carry dangers to consumers that are similar to the dangers of being sold prescription drugs loaded with known side effects (and NO warning), or the sale of deliberately tainted food- also without warning?
(d) In divorce custody cases, as well as in other types of boilerplate contracts, such as with banks and other members of the "financial industry", the legal remedy of taking the contractor to court for either harm or violation of contract is disallowed by the boilerplate or other legal protections.  In divorce cases it is disallowed, because both GALs and judges who present and enforce contracts have "Judicial immunity".  In both situations it is a stacked deck against consumers.

For up to date information on Guardian ad litem reform please contact us at MeGALalert@gmail.com or like us on Facebook. We welcome comments.

Additional information on boilerplate contracts we suggest reading the following book review published in the Wall Street Journal: "Boilerplate" by Margaret Jane Radin. Margaret Jane Radin is a law professor at the University of Michigan. The topic is highly relevant to the divorce industry and Guardians ad litem, Parental Coordinators and others subsidiaries of the divorce industry.

Judges in Maine are Practicing Medicine without a License

We are told that Judge Andre Janelle ordered a party into therapy, and on the first visit with the therapist, the client/ patient was asked what was the reason for seeking therapy.

The client reported saying that he/ she "was upset and disappointed with society". The therapist indicated that would not do, as it had to be a technical reason – such as depression or the sessions would not be paid for. The client stated that he/ she was glad to be divorcing, and not depressed, but the therapist continued to press the “depression” issue. The therapist had a struggle in trying to come up with a diagnostic category for this court ordered therapy. Finally the client told the therapist to put down whatever he/ she wanted. The client was never interviewed or counseled by the therapist for this diagnosis. There was no reason for the therapy other than Judge Janelle ordered it to be done. There was no depression experienced by the client/ patient. The “reason” was being fabricated for billing and court purposes, so a state (taxpayer - funded) agency would pay. It would also label the patient for the record as being depressed and this could be used in future court appearances against the patient/ client.
   
When Judge Andre Janelle forced this parent into “junk therapy” based on a Guardian ad litem “junk science” recommendation did he consider any of the following questions before forcing therapy:

1. Is the therapy really necessary? 
2. Is there an accepted diagnosis of a problem for which therapy is indicated?
3. Is the treatment a valid, recognized form of treatment?
4. Is it approved of by professional societies?
5. In the end is it really effective therapy?  
6. What us the aim of the Judge's prescription and can it be defined?  
7. Will this therapy work on someone without a diagnosis?
8. Does this forced therapy have the potential of causing harm?
9. Is the treatment ethical? Or does it force treatment that humiliates with no definable therapeutic purpose?

Judge Andre Janelle probably also didn't consider some other very real issues like: Human Rights violations – where courts and their officers who are unqualified (both in training or background in diagnosis, counseling and or therapy) are forcing innocent people into unnecessary sessions. These therapies such as recommended by Judge Janelle appear to be methods of control and punishment and not of treating an actual problem. In this case as in many the judge forced the release of therapy records by the party. What ever good that may have come from the “therapy” was dissolved from that point on. The trust necessary for any form of therapy – which is founded on near absolute confidentiality – was broken with that request. Confidences are ended. No privacy = no therapy. Forcing the release of information to be shared with the opposing lawyers and their clients – can be damaging in unforeseen ways to not only the client but also those innocently mentioned in therapy. Will Judge Andre Janelle or the Guardian ad litem be held libel for possible damages? Will the lawyers, therapist or 3rd party payers be held accountable? In the examples provided above – probably not as they either have immunity or deep pockets. It will come down to the person with the most to loose that will risk the cost of liability. This poses some interesting legal questions and issues.

The question that should be asked is why insurance companies and government health agencies – who are paying for this – are accepting this sham of forced therapy being prescribed by the likes of Judge Janelle? Do they realize what they are paying for? These Judicial/ Guardian ad litem prescriptions are frequently 'pro forma', and executed with little thought and no diagnosis but as a means of “Judicial Outsourcing” - about saving time for the judge in court that effecting any helping change in patients/ clients.

All third party payers - government (tax payer funded) or private - should have an interest in this set of issues; especially, if they are made aware of it. The money spent by these organizations is being wasted because of a Judicial recommendation that often has little or no bearing on a court case. Or is abused as a means of controlling a situation. The professional organizations, like the American Psychiatric Association have long had an interest, and have written volumes on the issues of confidentiality, informed consent, human rights - and the plethora of legal and ethical issues associated with these questions.

If you are or have been in a situation where the Guardian ad litem or the courts have ordered court sanctioned therapy please contact us at MeGALalert@gmail.com or like us on Facebook for up to date information on reform within the Judicial system.





For past posts on Judicial Outsourcing: The Role of Judicial Outsourcing in Maine

Judges in Maine 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.

Click on image for expanded view

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 MeGALalert@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.

Maine's Judicial Management Dilemma

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.

Maine should do this for the same reasons.

For more information on the issues of Guardians ad litem we encourage you to read the 2006 OPEGA report. 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 MeGALalert@gmail.com or like us on Facebook for information.

The Role of Judicial "Out Sourcing" in Divorce Custody Cases

An out of state friend has suggested the concept of judicial out sourcing as a way of describing the use of Guardians ad litem and associated divorce helpers, coaches and therapists in Maine Family Courts (and elsewhere). The basic idea is that today, judges almost routinely call upon ancillary court workers, like Guardians ad litem, and delegate, or subcontract to them, important aspects of their judicial function in family law divorce/custody cases. The ancillary worker “borrows” judicial authority, power and legal immunity and conducts an investigation into disputed child custody claims. Previously what used to be decided by an open, adversarial trial, in a courtroom, following the precedents of age old common law, now gets mediated, negotiated, manipulated or forced outside of court into unsatisfactory resolution by workers who frequently lack a legal background, lack public accountability and who lack recognizable skills in mediation or negotiation. Common law gets thrown to the wind in these procedural nightmares in which there may be multiple other helping “sub-subcontractors”, all acting as ‘de facto’, mini judges.

We would maintain that judicial out sourcing in divorce custody cases is corrupting decision-making in family court cases involving custody. It is the cause of much confusion and bad feeling for all parties. This confusion is the direct result of the delegation of judicial functions to various, well-intentioned judicial “helpers” who are unregulated, unsupervised, unaccountable, poorly trained and who, as a result, frequently operate in idiosyncratic, capricious, unprofessional ways to the detriment of families and children.

One of the criticisms of Guardians ad litem in the 2006 Maine OPEGA report (Office of Program Evaluation and Governmental Accountability) was the lack of clear role definition for Guardians ad litem. There is no job description for GALs. There are rules and standards for Guardians ad litem, but there is no oversight and no enforcement from any management structure within the Judicial Branch. The result is that GALs essentially are free to do their “own thing”, interpret rules and standards as they see fit, see them as suggestions or loose guidelines, or ignore them completely, with no consequences. The bad feeling that the public experiences from this “lawlessness” is incalculable. Judges frequently feel that they have oversight from courtroom observation alone, or from ‘ex parte’ communications. But these judicial claims of oversight lack the knowledge about what goes on out of court between the GAL and the parties and they become unavoidably biased by confidential 'ex parte' communications between judge and GAL. These out of courtroom conversations between judges and GALs also destroy the common law concept of open decisions openly arrived at - to say nothing of the inherent “due process” violations in secret 'ex parte' communications.

Then there are the quasi-amateur mediation and negotiation functions undertaken by GALs that further corrupt legal proceedings. In these nontraditional functions, GALs often try to operate with a postmodern, conceptual framework of “moral equivalency”. In all cases, each party is equally “bad”. It is a parody of impartiality. Whatever “A” did is balanced in this perverted equation by equally bad things done by “B”. If “A” beat their child to a pulp; it was caused by living with “B”, who was “caustic and controlling” or so emotionally difficult to be with that any “normal” parent would do the same to his/her child out of frustration. Parent A drinks: Parent B drove him/her to drink. Parent A does “bad” things; Parent B pushed his/her buttons. He/she couldn’t help themself! ”Victims” in these situations are rescued by the GAL’s use of “pop” sociology, “pop” psychology. This ‘faux science’ has been called “junk science” by a California group seeking tighter oversight on the all too common use of non-expert GALs as “expert witnesses” in court. Then there is use of force by GALs to gain consent to a biased custody agreement. Raw force is frequently hidden by threats that non agreement will lead to “recommendations” to reduce the non-compliant parent’s visitation with his/her child, to “recommendations” that he/she must do anger therapy (for normal anger?), to needs for expensive co-parenting therapy- all of these are highly disputable, unproved forms of forced “help”. They are supposedly “remedies” but they are without any definition of the problem needing remediation. They add enormous confusion and huge cost to the proceedings for the parties involved. And forced “help” of whatever kind is outside of common law. It is basically punishment without a trial. Yet the illegality of “force” is ignored, and these barbarisms find refuge in the armamentaria of Maine family court judges. We can point to many cases in which this has taken place.

The Judiciary needs to clean house when it comes to ancillary “divorce midwives”, who complicate the delivery of a custody judgment in a contended divorce. GALs, anger therapists, negotiators, mediators, co-parenting counselors and the rapidly growing cast of expensive divorce help end by piling confusion on confusion- and dollar on dollar. Are these “helpers” really necessary? Do they help? They totally pervert the judicial process. And they lack any scientific basis or credibility outside of the courts which use them. We need to ask, why are they better than an adversarial trial in court? Can anyone show us reputable scientific studies that would endorse the effectiveness of these “therapies” which are popular and boosted by many Maine courtrooms? We can safely say that there are none. These are legal “therapies” promoted by judges and their subcontractors with no other basis than that judges like them.

These harmful practices need to end. They cannot be repaired. If you have been involved with a Guardian ad litem where things just don't make sense – please contact us at MeGALalert@gmail.com or like us on Facebook to stay up to date on the issues.