| KDogg |
| (journeyman) |
| 01/17/12 03:11 AM |
Biased Guardian Ad Litem
|
Just wondering if anyone has ever challenged a GAL's recommendations and gotten a ruling overturned because the GAL was biased. If so, I'd like some input on the matter.
The GAL appointed to my case had four months to work on it, and this is how he spent his time:
- Met with my ex once, unsure as to how long
- Met with me once for about 15-20 minutes but cut me off on just about everything I had to say, especially if it wasn't favorable to my ex or her mother
- Met with ex's mom twice in person and several more times by phone
- Did not meet with my daughter at all, even though he was appointed to represent her
At the hearing, the GAL's recommendations read like he was representing my ex's mom and everything she wanted rather than my daughter. He did mention her briefly, sounding as if he'd met with her several times by saying things like "she appeared to be" or "she expressed her desire as" and so on. But again, even those statements were more of a representation of what my ex and her mom wanted.
The GAL also didn't provide me with copies of his findings and recommendations before the hearing, as required by law. The first I heard of anything was as he read them to the court, and he spoke so fast I could barely keep up with what he was saying.
So, any ideas on how to handle this? Personally, I'm considering an appeal from family to circuit court, as well as a complaint to the Lawyer Disciplinary Board (the GAL is also a lawyer). All input welcomed - but no bashing. If you need more information, feel free to ask.
| Renny |
| (addict) |
| 01/17/12 06:23 AM |
|
Re: Biased Guardian Ad Litem
|
Do you have a transcript of the hearing? Was the GAL cross-examined?
| KDogg |
| (journeyman) |
| 01/17/12 07:30 AM |
|
Re: Biased Guardian Ad Litem
|
The hearing was held not even two weeks ago, on Jan 5. Our Family Court doesn't do transcripts but does provide a video cd upon request. I am pro se, and did attempt to cross-examine the GAL but only got a few questions across before the judge cut me off and made his ruling, which is where I got the information as to how much time he spent talking to everyone. The only one I didn't get specific was whether or not he met with my daughter, but she says she never talked to him.
| Renny |
| (addict) |
| 01/17/12 11:10 AM |
|
Re: Biased Guardian Ad Litem
|
[quote]The hearing was held not even two weeks ago, on Jan 5. Our Family Court doesn't do transcripts but does provide a video cd upon request. I am pro se, and did attempt to cross-examine the GAL but only got a few questions across before the judge cut me off and made his ruling, which is where I got the information as to how much time he spent talking to everyone. The only one I didn't get specific was whether or not he met with my daughter, but she says she never talked to him. [/quote]
Was this a final custody determination in a divorcve proceeding or subsequent proceeding? Where are you in the process and what process?
In any event, imo it is highly unlikely the judge will change his/her ruling, and attacking the GAL's testimony based on bias will probably have no effect on the GAL or the ruling.
| annieo |
| (veteran) |
| 01/17/12 02:14 PM |
|
Re: Biased Guardian Ad Litem
|
I would appeal and have the ruling set aside and then pay for a new GAL - BUT I wouldn't do this pro se - big mistake in the first place (judges in family court hate pro se especially when GAL's are involved) as far as not talking to your daughter or even observing you in your home environment with the child present makes it extremely difficult to asses a home correctly - it is NORMAL to spend time in each home with each parent AND the child.
Get an attorney asap and go from there....
Good Luck
| KDogg |
| (journeyman) |
| 01/17/12 05:05 PM |
|
Re: Biased Guardian Ad Litem
|
Renny - My ex and I were never married, as she broke off the engagement while still pregnant with our daughter. When I refused to go back with her, she held the child against me and refused to allow me any form of visitation or contact. I ultimately had to file a petition for visitation, and after much legal wrangling and fighting the system itself I won. The final order for visitation and custody was entered back in 2000 and we've used the same plan ever since.
Over the years, my ex interfered with my visitation on many occasions and made several false allegations of abuse and neglect in attempts to get my rights terminated altogether. Each and every time she has failed, and several times was found in contempt and had to make up visitation time I had missed.
This latest isssue is the result of her most recent attempt to get my rights terminated. My ex and her girlfriend interfered with my visitation and filed yet another false allegation of abuse, and my answer to that was a petition for modification of custody. The hearing for that is where the GAL was brought in, and the most recent hearing and subsequent order (the subject of these posts) are to be the final order on the issue.
Now, as far as the GAL is concerned, he committed several procedural errors and failed to do a complete investigation on the matter. He was supposed to meet with me, my ex, her mom, and our daughter. He spoke to everyone but our daughter (according to her, anyway) but he testified that he had talked to her and made recommendations based on what she (supposedly) told him. He was also supposed to provide me with a complete copy of his investigation report and notes prior to the hearing as required by law, which he did not do. If I can prove that he never spoke to our daughter but introduced testimony that he had, that alone would be enough to get the ruling overturned and would also show bias.
I hope this better explains the situation.
| KDogg |
| (journeyman) |
| 01/17/12 06:34 PM |
|
Re: Biased Guardian Ad Litem
|
Annieo - I have worked my case pro se from the very beginning some 12 years ago and haven't had any problems with the family court judges I've been in front of. Well, except for the time I made one mad by quoting the law to him. But other than that they've been quite respectful of my situation.
As for lawyers, I've defeated at least two, and scared the one that was teaching a Domestic Relations class that I took. He was talking about custody and visitation and how things were supposed to be done, but after he went around the classroom getting everyone's input I jumped back into the conversation with dirty-but-legal tricks that I'd learned from my ex and from people on these forums. No, really, he legit looked at me and said "you scare me."
Now, for that pesky GAL.
I'm not sure what all he did while visiting my ex and her parents. He said he talked to my daughter and testified as to his impressions of her and to what she (supposedly) said, but she says that she never seen or talked to him.
He only visited with me for about 15 minutes and never came inside my home. I was working in the yard when he arrived and that's where we talked. Though he said he would be back to talk with me more and possibly while my daughter was with me, he never came back or even called. He also told me that my ex was pretty much out of the picture as far as he was concerned and that the matter rested between myself and the ex's parents, and said that he would like to get us together to negotiate and agree on a parenting plan. But if I mentioned anything negative about things I've experienced in the past while dealing with the ex and her family, he would cut me off. That gave me the impression that his mind was already made up and that he was just going through the motions.
He also committed several procedural errors along the way. If he in fact didn't meet with my daughter or talk to her, then his investigation as required by the court was incomplete. He was also required to send me copies of his reports and recommendations ten days prior to the hearing but I never received anything from him.
Finally, the final order drafted by my ex's legal aid lawyer does not read anything like what was discussed in court. I'm not sure if the court will accept it, but I'm going to create another draft to reflect the court's ruling and submit it. If it is denied and the lawyer's draft is entered as the final order, then an appeal will follow shortly thereafter.
And a word of advice to anyone considering or facing the possibility of having to go pro se (and to anyone in general that's relying on a lawyer to do all the dirty work): Do your homework. You can start with the posts about various topics on these forums and see what others are going through and how it's being dealt with. Learn how to read and break down state codes and become familiar with those parts that apply to you. Also learn how to read Supreme Court opinions, as this is where "case law" (cases that set the standard for future similar cases to be decided against) comes from. If you do have an attorney, make good use of the time you're paying him for. If you're not familiar with something, have him break it down into layman's terms. And then research it further on your own.
| Renny |
| (addict) |
| 01/17/12 07:25 PM |
|
Re: Biased Guardian Ad Litem
|
Kdogg, if I am skeptical of your chances of nailing the GAL, take it as an opportunity to hone your forensic skills further. Congrats on having tee presented yourself successfully for so long.
I doubt a GAL would lie about meeting your daughter on the stand. They don't make a lot of money and many orients don't pay, so if they are in that line of business they do it because they get some personal satisfaction out of it and enjoy a reasonably good reputation at least among legal professionals. The bad ones, especially the ones with problems with their testimony, are quickly weeded out. No one wants to waste time and money with a lousy GAL.
GALs should produce a report or at least a summary report if the parties don't want to spend too much money before the hearing. Appaently you walked into the hearing without a clue of where the GAL stood. This is not the way we do business in my state, and it's more than a procedural error. Is there more to this?
As for the appeal, in general there must be a mistake of fact or law, or abuse of discretion. Very hard to get by the last one.
At any rate, what will be the end result of your modification? What are you seeking to modify? How does it tie in with the attempt to terminatec your visitation rights?
| KDogg |
| (journeyman) |
| 01/17/12 11:17 PM |
|
Re: Biased Guardian Ad Litem
|
Renny - I am probably just as skeptical as you are about my chances, so rest assured I've been sharpening every skill I think might be necessary and some that are not lol.
I would hope that any GAL wouldn't lie, but I have read cases where it has happened. Proving it here will be difficult, as I'm sure that even if he didn't talk to my daughter his reports will reflect that he did. And I'm not saying my daughter didn't lie about talking to him, and I've considered that. But she's not only told me but others as well that she never talked to him. I'm more skeptical of him though, because everything he said was almost like an echo of what my ex and her mom had been saying before, and also the fact that any time I mentioned anything negative about them he would cut me off. Somebody's lying though, and I will find out... I hope.
As a side note a GAL in WV, when paid for by the Supreme Court, gets $45/hour for work outside of court and $65/hour for time spent in court, up to $1200 per case.
As for his reports, both the WV Rules of Civil Procedure and the State Code require a GAL to provide a copy of his findings and recommendations to the Court, parties' counsel, and to any party not represented by counsel, at least ten days prior to the hearing, unless a shorter time is ordered by the court and with good cause shown. The GAL didn't do that, or at least I didn't get a copy of it.
My appeal will be based on the GAL's failure to provide the reports and, if proven, that he didn't complete his investigation as required by the court if in fact he didn't meet with or talk to my daughter.
Also, I might be able to prove the court abused its discretion. I've read some cases that were similar to mine, where the family/circuit court awarded custody to grandparents without regard to their health, physical condition, or what could happen later on that would significantly change the circumstances.
Another issue is where a third party (grandparent, etc.) was awarded custody when one parent was determined to be unfit or for whatever reason shouldn't have custody, without regard to the other parent that was not proven unfit. WV has a constitutional declaration that says "In the law concerning custody of minor children, no rule is more firmly established than that the right of a natural parent to the custody of his or her infant child is paramount to that of any other person; it is a fundamental personal liberty protected and guaranteed by the Due Process Clauses of the West Virginia and United States Constitutions."
Hopefully the end result of this mess will be me finally getting custody of my daughter. That's my goal, anyway...
| gr8Dad |
| (Carpal \'Tunnel) |
| 01/18/12 11:26 AM |
|
Re: Biased Guardian Ad Litem
|
Other grounds that you might use is if the transcripts of the case show the judge cutting off your questioning of the GAL, especially in light of the fact that you were not given a copy of the report, this could be grounds for a re trial.
| signguy |
| (newbie) |
| 02/09/12 09:30 AM |
|
Re: Biased Guardian Ad Litem
|
i tried to have my GAL removed. didnt work
| Goodmom |
| (Pooh-Bah) |
| 02/09/12 04:59 PM |
|
Re: Biased Guardian Ad Litem
|
You said:
Just wondering if anyone has ever challenged a GAL's recommendations and gotten a ruling overturned because the GAL was biased. If so, I'd like some input on the matter.
My response:
Just because you don't agree with the GAL's decision does not make them biased.
You said:
- Met with me once for about 15-20 minutes but cut me off on just about everything I had to say, especially if it wasn't favorable to my ex or her mother
My response:
And there's why the GAL ruled the way he did. It's usually not a good idea to speak negatively about the other parent. A good rule of thumb is to speak about your child and how what you want is in the child's best interests without saying one negative thing about the other parent.
You pretty much hung yourself in your interview with the GAL.
Whether or not it is alarming that the GAL didn't speak to the child would depend on the age of the child.
| Maury |
| (Carpal \'Tunnel) |
| 02/09/12 06:18 PM |
|
|
Re: Biased Guardian Ad Litem
|
You may always challenge a GAL's recommendation. That is what trials are for. At trial you seek to undermine the training, methodology and conclusions of the GAL. I have had Judges rule inconsistently with a GAL's recommendations on many occasions.
I also agree that because a GAL disagrees with your position does not make them biased. In some cases they are wrong. In others they are probably correct. That does make them inappropriately biased.
| gr8Dad |
| (Carpal \'Tunnel) |
| 02/10/12 11:36 AM |
|
Re: Biased Guardian Ad Litem
|
Wow, more REALLY bad advice. Did you catch the part where the GAL stated that they spoke to the child, but the child said it didn't happen. That's called a lie, in court, its called perjury.
| Goodmom |
| (Pooh-Bah) |
| 02/10/12 05:16 PM |
|
Re: Biased Guardian Ad Litem
|
You said:
Wow, more REALLY bad advice.
My response:
BAER.
You said:
Did you catch the part where the GAL stated that they spoke to the child, but the child said it didn't happen.
My response:
Because kids never lie and tell you what you want to hear. BAER
You said:
That's called a lie, in court, its called perjury.
My response:
Unless it's the kid that told the lie.....
And still doesn't change the FACT that you DON'T BADMOUTH the other parent to the person who has influence with the judge's decision. Reeks of potential parental alienation.
As I stated before, it's not bias simply because one doesn't agree with the GAL's decision.