DAILY TOOL: Steps for Fighting a GAL

TOOL OF THE DAY:  Steps for Fighting the Appointment of a GAL

CATEGORY: Family Law Due Process

“It is the first responsibility of every citizen to question authority.”― Benjamin Franklin

Okay, you argued that you don’t believe that the judge should speak to your child in chambers and you used the confrontation clause from yesterday’s post and now the judge has ordered a GAL (guardian ad litem) to be in charge of your child’s wishes and best interest. Now it’s time to learn how to object to this.

The family courts are stepping out of bounds when they appoint GALs in family law cases where there is no child abuse or clear and present danger.

Judges have a way of imposing burdens on you and punishing you when you disagree with them, argue with them, or try to impose a restriction on them. They find ways around what you say they cannot do, making it feel almost futile to challenge them on anything. Of course, they do, this is part of their job. Their job is to get people to do what they say to do! But only after they have applied proper due process.

The job of this GAL is probably to advise the court on what the child’s wishes are and what they think is best for your child. This should also be considered double hearsay. (Double hearsay is where a report is made and the report is read showing the statements of another person who is not available to be cross examined. This is used often when GALs or other custody evaluators read their reports with statements from the child.) If the court uses a GALs determination of what is best for your child superior to your determination before a court has proven you to be unfit, this is in direct conflict with U.S. Supreme Court decisions. (Look in our book for references to what cases apply to this argument, “NOT in the Child’s Best Interest.” and look up hearsay exceptions to determine whether or not the report and statements from the GAL or custody evaluator violates or is in compliance with the rules.)

What is the definition of a GAL? It’s always important to know the role and definition.

1. Guardians ad litem may be called, in some US states, Court Appointed Special Advocates (CASA). In New York State, they are known as Attorneys for the Child (AFC). They are the voice of the child and may represent the child in court, with many judges adhering to any recommendation given by a GAL. (definition from http://en.wikipedia.org/wiki/Legal_guardian)

And on a North Carolina attorney website we found this banner saying that if you are interested in becoming a volunteer to click on their banner:

You, the fit parents, should be the ones to “Be The Voice For Your Child!” And really you are until you don’t fight someone else trying to take over that role. No one says that this fight is an easy one. It is going to be very difficult because those volunteering to be GALs have a mindset that they are protecting children. If they are involved in a true child abuse case then they are. But being in the middle of two disagreeing parents is none of their business.

And here is a banner from the Utah courts regarding their guardian ad litems. Notices how they refer to their role as being involved in child abuse cases:

“The Office of Guardian ad Litem provides attorneys to represent the best interests of children and teens in cases of alleged abuse, neglect, and dependency in the juvenile courts. Sometimes those young people are in foster care, but most often they are able to safely remain at home while the family engages in court-ordered services designed to resolve the circumstances that gave rise to state intervention.” (http://www.utcourts.gov/specproj/galcasa.htm)

The banners can really pull on your heart strings can’t they? That’s the intention. Everyone wants to protect a child. So the family courts get away with this because they make everyone think that if you fight against the appointment of the GAL you are fighting against protecting your child. That’s not the case at all. And you will have to re-frame that issue so that the court is applying the right rule of law as well as the correct solutions. Keep reading.

So let’s go over quickly why this might be happening. The Court goes into automatic in many states and just believes that if the parents are in conflict that they can no longer decide what is best for their own child. They may think that the statutes and the parent’s in disagreement give them authority to do whatever they please, but that’s only the case if you give in, or don’t object properly.

If the court is allowing the GAL to enter testimony on behalf of your child this is a direct violation of the confrontation clause. (We went over how a judge talking to your child in chambers is a violation of the confrontation clause in yesterday’s post, you can access that post here: Confrontation Clause and Judge Conferring with Child. )

Let’s go over how this could be violating the confrontation clause.

1. Hearsay: What are the rules for hearsay in your state?
   1. Many courts get away with this because of what your order says when they order the GAL. We’ve seen some orders say that the GAL will be allowed to testify and that nobody is allowed to object to their testimony, etc.
   2. If you have an order that says this. As soon as you get this order, you would need to make your objection then.
   3. You would also want to object to the appointment of the GAL when the GAL is first appointed even before the order is made.
   4. You need to classify your objections. If you believe that it is hearsay or double hearsay then you need to be prepared to argue and defend that objection.
2. Confrontation Clause: This is violating it if the GAL enters testimony based on your child’s wishes or statements.
   1. See the case mentioned in yesterday’s post Crawford and apply the same reasoning to the GAL attempting to testify on behalf of the child where you cannot cross-examine the child.
3. Objection on GAL trying to determine an issue at law.
   1. If the GAL is advising the court on what the rights and duties should be of the parents regarding their child, then this might be argued as the GAL is not qualified to determine an issue at law.
      1. Objection: Expert not Qualified.
         1. This is a common objection that many attorneys attempt to use whenever an expert witness is brought in. It is difficult to persuade a judge that an expert they have appointed is not qualified. This doesn’t mean that you don’t preserve this objection on the record. If you don’t you cannot raise the issue on appeal. So don’t worry if the judge disagrees with you.
         2. Perhaps try this: Expert Opinion Based Solely on Hearsay.
            1. Use the hearsay rules and double hearsay rules.
            2. Always back up your objections with asserting your rights to be superior to the person testifying if the court has not proven the authority to place someone above your best interest determination for your child. Basically, you are arguing to the court that the expert’s testimony is irrelevant in relation to the case before the court because nothing has been brought before the court to overcome this threshold, and merely piling on experts to bring forth evidence before a proper adjudication hearing, you would argue the court should see as nothing more than hearsay.
      2. Objection: Expert opinion not reliable, relevant, and helpful.
         1. You can also use this one in conjunction with the above objections or alone. One of the popular uses of this objection is to claim the GAL or custody evaluators testimony is based on speculation. But there is another part of this that could be helpful especially if you used 3.2.2. suggestion above.
            1. Expert testimony would intrude upon the judge’s role. If it is the judge’s duty to apply the supreme law of the land prior to interfering with your fundamental rights, then you are arguing that it is not the experts job to decide if the judge is authorized to interfere. This takes you back to your core argument that you are a fit and loving parent and the state is not authorized and the other parent cannot be authorized to interfere until they prove they have established the proper authority to do so.
            2. Don’t forget then to go back to your argument that it is the burden of the state to prove you unfit and not your burden to prove that you are fit. By requiring you to submit to any experts puts the burden on you to prove your fitness. You are shutting them out of your private business.
            3. Remember this is going to frustrate the court and experts and they will do everything to make you feel like you will look like you are hiding something or afraid of them finding something out. They forget it is okay for you to protect yourself from their inquiries when they have not established that they have a proper foundation for those inquiries. They cannot go on fishing expeditions without your permission. Then move onto the next step. Because they will feel authorized by the statutes.
4. Objection: The statute you are using (list the number of the statute) is unconstitutional as applied. (This includes statutes that allow them to make any inference that you are guilty if you don’t consent or give in — be cautious to research these methods heavily before you applying them to yourself. We cannot be responsible if they do have proper authority and you are inappropriately challenging it. So make sure that you know all the steps and all the requirements. it is up to you to decide if they can legally punish you for resisting them. We are not presenting this information for you to inappropriately resist. This is for proper resistance only.)
   1. You would use this if the your state has a statute that requires the judge to appoint a GAL or allows an appointment without meeting the threshold required by due process.

You would also use some of the same questions you would ask yourself about a judge but now about a GAL. Ask yourself the following to see if your situation might qualify for the protections of Crawford v. Washington (2004) SCOTUS and Maryland v. Craig (1990) SCOTUS. These can apply to judge, GAL, and other custody evaluators:

1. Is the judge eliciting testimony?
2. Is the testimony hearsay?
3. Is the hearsay testimonial in nature?

Basically, you could do this for any expert the court appointment to override your determinations of what is best for your child, not just the judge. (And remember your determination for your child is only superior if you have not been proven unfit or a direct clear and present danger to their child.)

Here is some sample dialogue you could use with the judge if the judge is insisting on questioning your child:

“Your honor, I object to you questioning my child privately in chambers. I have a right to confront any witness.”

“Your honor, I object to any expert testifying on behalf of my child after questioning or interviewing or counseling my child via closed-circuit or in private sessions. I have a right to confront any witness.”

Judge might say, “Do you really want to put your child through publicly testifying?” (ALERT: This is an attempt to make you feel guilty and pull on your strings where you want to protect your child from harm. Don’t fall for it. They are just using your love for your child to subvert yours and your child’s rights.)

First, respond with backing up your objection with Maryland v. Craig to argue that the court must make an “adequate showing of necessity” before allowing any closed circuit or in chambers interview.

You could respond with any of the following: “Your honor, I am not choosing to place my child in the middle, the court is insisting on this. I object to my child being put in the middle when I hold the child’s care and rights in trust. I represent my child just as the other parent does equally. The only thing that I am asking the court to do today is to protect all of our rights equally and individually. It is not necessary to involve the child or to bash each parent. I have a simple solution that doesn’t require any of this.” Then present the solution of each parent’s rights being individual and separate. And that the only time the court should be holding this type of disposition hearing and determining whose rights will be interfered and interrupted by the state is after proper adjudication hearings.

Then go back to supporting your contention with other case law Crawford, where you justify that the confrontation clause applies. Furthering adding teeth to your objection that the testimony garnered from your child would be hearsay if you cannot cross-examine.

The court is not used to hearing these arguments in family court so they will push back. They will try to say these cases don’t apply they are criminal. Well then interviewing in private doesn’t apply because that comes from criminal cases too.

Parents will have to continue to put up these types of challenges until the courts get the message that parents are finished being put through expensive unnecessary burdens just to rip their child from them. If you are through with the court taking over your rights and time away from you and your child then you might find these posts helpful. Let’s continue on with this line of thinking and apply it to other experts and court appointed people put in place to interfere with your fundamental rights.

If the GAL is going to question your child in private or use something that the child wrote to justify suggesting that the judge interfere with your rights and time with your child, think about “How would the GAL get the testimony on the record?” If the GAL is testifying and you have no opportunity to cross-examine the child, then this is inconsistent with your 6th amendment right of confrontation:

“Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of “testimonial.” Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.

In this case, the State admitted Sylvia’s testimonial statement against petitioner, despite the fact that he had no opportunity to cross-examine her. That alone is sufficient to make out a violation of the Sixth Amendment. Roberts notwithstanding, we decline to mine the record in search of indicia of reliability. Where testimonial statements are at  issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.

The judgment of the Washington Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.” [Crawford v. Washington, 541 US 36 – Supreme Court 2004]

The GAL would have to submit a report that is considered by the judge or testify. Either way, neither of these allows you to cross examine your child on any of the content that is being presented.

There will be pushback that the court gives you and ways they have to try to make you feel guilty or look bad for insisting on being able to cross your own child. They will say things like “Do you really want your child to have to testify?” and “Do you know how damaging that could be for your relationship with your child?”

Allowing them to enter testimony on the record from your child and speak on behalf of your child is damaging for your relationship. And even though the Supreme Court did not define testimony in this case, and did not specifically call out judges in their list of who is considered to be abusing their power,they do address that if it offends the constitution then that is good enough for them to overturn it.

The courts act as if they aren’t already creating damage to your child and the relationship between you and your child. They really just don’t like to be challenged and they certainly don’t want you making the decisions. They enjoy the power of being able to make the decision and in their mind simplify matters by not having to consider your rights. They might have even convinced themselves that they are protecting the child and simplifying life for the child by being the one to make the decisions. The type of protection they are trying to provide for the child is outside the scope of their authority to protect. (This is discussed in other blog posts.) And the simplifying life for the child is beyond the subject matter that they are allowed to rule on when it is the fit parents right to choose whether this is something required for the raising and development of their child. What a court might consider simplification might actually be taking a benefit away from a child and harming them.

Regardless of a judge, GAL, or any other expert’s personal feelings, it is not their right to decide for your child, and they have not proven that they have met the proper threshold for becoming the authority or decision maker in your child’s life.

So take this case and these steps and apply it to anyone that is inserted between you and your child. And do your best to stay strong and not let it get to you when they try to make you feel bad for not giving in to them. They are the ones who should feel terrible for trying to come between you and your child. They should also feel terrible for trying to get in the way of the child’s equal access and equal time to their parents.

To recap here are some of the Objection examples you might also consider using:

1. OBJECTION: Hearsay and violation of the confrontation clause. Then state that your authority is Crawford v. Washington (SCOTUS 2004). And if you have any cases on hearsay, use those too.
2. OBJECTION: Not qualified to decide an issue at law. You can explain that the issues to be determined are whether the fundamental parental rights and child’s right to be allowed to continue to exercise their equal access and equal time together can be interfered with by the State. Perhaps argue that the court has put the cart before the horse and explain that you believe a GAL shouldn’t be assigned until the court has proven you either to be unfit or a clear and present danger directly to the child. And that you believe that it is not properly plead for either of those two things and therefore the only thing for the state to decide would be if they are going to protect yours and your child’s rights to continue to be 100% intact individually and separately from the other parent. (I might have put quite a lot here in this objection. You will want to say most of the argumentative part of this in an opening statement, and leave your objections very simple.)
3. Under Crawford, the first issue is whether the hearsay statement is “testimonial” in nature. If so, the constitutional right of confrontation and cross-examination is absolute, and no showing of reliability, whether based on a “firmly rooted” exception or particularized indicia, can substitute.

For other defenses in using the Crawford case, please see yesterday’s post.

This post is also good to read if you are considering asking for a GAL. Know what authority you are giving up if you do ask for one. Ask yourself why you are giving up that authority and what will happen if that GAL decides against you.

Keep coming back to this blog for other solutions posted daily, as we help you explore your options and make your decisions easier on what is right for you and your family.

Take Care and see you back here tomorrow!

 

 

Disclaimer: I am NOT an attorney or a lawyer. I do NOT practice law in any federal or State court system. Any information provided by me to you, regardless of how specific, is NOT intended to be legal advice under any state or federal law. I provide research, written strategies, and non-professional personal opinions on the Constitution and State laws as free exchange of politically important information that also serves an important public need and interest allowed under the First Amendment. You are highly encouraged to engage an attorney in your State to help you with the specifics of your legal issues and the law in your State. If you are a pro se litigant then you bear all and full responsibility for understanding the law in your state and acting under the law in your state. Nothing you receive from me is intended to be a “legal” document for purposes of any type of filing in any court. You are free to use my words for your personal non-commercial benefit, or as an aide in petitioning your government for redress of perceived wrongs, if properly cited where appropriate. YOU TAKE SOLE RESPONSIBILITY FOR ANY LEGAL ACTIONS YOU PURSUE AND THE RESULTS THAT YOU GET. I BEAR NO RESPONSIBILITY FOR YOUR RESULTS. MY OPINIONS ARE NOTHING MORE THAN MY PERSONAL NON-PROFESSIONAL OPINIONS OR BELIEFS. I MAKE NO CLAIMS OF LEGAL COMPETENCY IN THE LAW UNDER ANY GOVERNMENT STANDARD OF COMPETENCY IN THE LAW.

 

The information provided above is not a substitute for the advice of an attorney. You should consult an attorney regarding your rights under the law.

*Courtroom handbook on Texas Evidence 2012 West

**Texas Evidentiary Foundations: Second Edition 1998 Lexis