Ok, the Court has appointed a Guardian Ad Litem in your case. Now what?
A lot depends on why the guardian was appointed. Courts can appoint guardians on their own initiative, or in response to a request by either party. Some courts have an established practice of appointing a guardian if the judge believes that custody is going to be seriously contested.
Whatever the reason, the appointment of a guardian is a significant development in your case. A guardian is automatically treated as a party, and must get copies of everything, and has the right to appear at all proceedings in the case.
It is important to get off on the right foot with the guardian. Too many litigants view the guardian with suspicion or hostility, and treat them as an extension of the other side. That can be a serious mistake. Guardians are officers of the court, and deserve the same courtesy given to the judge.
Guardians are charged with investigating the facts of the case, and making a recommendation to the judge on the issues of custody. It is important that you make a favorable impression. You can't control how a guardian will think or act, but having a good rapport with the guardian will help avoid misunderstandings.
It is also important to remember that the guardian is not the judge, and cannot control the situation. Do not fall into the trap of assuming the guardian is biased merely because he or she cannot help get you what you want. The guardian cannot discipline either side, or make an angry or bitter person act better.
Keep communications open and effective with the guardian. Give him or her all the information you think is helpful to an understanding of your case. Be fair - don't just load up on all the negative information against your spouse. Guardians form impressions of parents' motives, and are not hesitant to tell the judge when the time comes.
But sometimes it happens that despite your best efforts, the guardian seems to be against you, and the outcome you are seeking. In our next installment we will review some methods for overcoming apparent bias.
Sunday, August 1, 2010
Saturday, July 31, 2010
Do it yourself Divorce?
Many, if not all, counties in Georgia have responded to the increase in unrpresented parties in their family courts, by creating and handing out forms, templates, and packets for individuals to complete themselves. Almost always these forms come with disclaimers, advising the user that they should seek legal help from a lawyer, and that they use the forms at their own risk.
Unfortunately, the warnings do little, if anything, to cause litigants to slow down and really consider the effects of what they are doing. Too many parties view the paperwork simply as a hoop they must jump though to get that divorce.
Certainly all individuals have the right to represent themselves. But preprinted forms won't help a pro se litigant against an experienced divorce lawyer. Lawyers know not only the published rules, but the informal practices at each court. They know the judges, usually, and their likes and dislikes. Lawyers are practiced at assembling the evidence into a presentable and understandable fashion. Too many litgants, show up before the judge with a naive outlook that they will somehow get justice if they speak earnestly.
Divorce courts are no place to play amateur lawyer. The stakes, in terms of family relationships and finances, could not be higher. Too many clients come to me after the disaster has struck, wondering just what happened to them and where it went wrong.
If you find yourself in a likely divorce situation, don't trust your future to a blind faith in the court. It is likely to come out poorly. Save your pennies and go hire a good lawyer.
Unfortunately, the warnings do little, if anything, to cause litigants to slow down and really consider the effects of what they are doing. Too many parties view the paperwork simply as a hoop they must jump though to get that divorce.
Certainly all individuals have the right to represent themselves. But preprinted forms won't help a pro se litigant against an experienced divorce lawyer. Lawyers know not only the published rules, but the informal practices at each court. They know the judges, usually, and their likes and dislikes. Lawyers are practiced at assembling the evidence into a presentable and understandable fashion. Too many litgants, show up before the judge with a naive outlook that they will somehow get justice if they speak earnestly.
Divorce courts are no place to play amateur lawyer. The stakes, in terms of family relationships and finances, could not be higher. Too many clients come to me after the disaster has struck, wondering just what happened to them and where it went wrong.
If you find yourself in a likely divorce situation, don't trust your future to a blind faith in the court. It is likely to come out poorly. Save your pennies and go hire a good lawyer.
Friday, July 23, 2010
Court denies relief from abusive quasi-criminal proceedings
We were disappointed to see that the U.S. Supreme Court, after accepting certiorari in Robertson v. U.S. ex rel Watson, belatedly changed its mind and denied cert as "improvidently granted." Justice Roberts authored a stinging dissent, arguing that the court should have re-emphasized that the power to bring criminal proceedings belongs exclusively to the sovereign, and should not be wielded by private parties.
This cert denial allows the Court of Appeals and trial court rulings to stand. Those rulings had allowed the former girlfriend to sue her former boyfriend in criminal contempt, thereby adding three consecutive 180 day jail stays on top of an existing multi-year sentence - even though a duly-empowered prosecutor for the state agreed that no charges would be brought as part of a plea bargain in a subsequent case.
This dangerous ruling allows to continue the dangerous trend of mixing civil and criminal remedies together, under the umbrella justification of addressing "domestic violence". This author believes the laws empowering civil courts to impose criminal sanctions is not only dangerous, but a breach of our fundamental constitutional rights to confront our accusers and receive a fair and impartial trial, and the rights against double jeopardy.
Too many states now rely upon the federal dollars attached to so-called domestic violence cases. Too many prosecutors are being constrained from making common-sense decisions. The lure of federal funding for such cases, in a time of tight state budgets, creates near-irresistable pressure to take domestic violence cases to the mat, wastes important state resource, and causes defendants in domestic violence cases to be singled out for harsher treatment merely because the actions arose between individuals who had been living in the same house.
Most troubling is the Court's apparent sanction of legislative efforts to strike at some of the most fundamental rights we have to protection against abusive government action. We can only hope that the Court will readdress this issue in the near future, and provide a curb against the tide of abusive prosecutions that is occuring under the banner of "domestic violence".
This cert denial allows the Court of Appeals and trial court rulings to stand. Those rulings had allowed the former girlfriend to sue her former boyfriend in criminal contempt, thereby adding three consecutive 180 day jail stays on top of an existing multi-year sentence - even though a duly-empowered prosecutor for the state agreed that no charges would be brought as part of a plea bargain in a subsequent case.
This dangerous ruling allows to continue the dangerous trend of mixing civil and criminal remedies together, under the umbrella justification of addressing "domestic violence". This author believes the laws empowering civil courts to impose criminal sanctions is not only dangerous, but a breach of our fundamental constitutional rights to confront our accusers and receive a fair and impartial trial, and the rights against double jeopardy.
Too many states now rely upon the federal dollars attached to so-called domestic violence cases. Too many prosecutors are being constrained from making common-sense decisions. The lure of federal funding for such cases, in a time of tight state budgets, creates near-irresistable pressure to take domestic violence cases to the mat, wastes important state resource, and causes defendants in domestic violence cases to be singled out for harsher treatment merely because the actions arose between individuals who had been living in the same house.
Most troubling is the Court's apparent sanction of legislative efforts to strike at some of the most fundamental rights we have to protection against abusive government action. We can only hope that the Court will readdress this issue in the near future, and provide a curb against the tide of abusive prosecutions that is occuring under the banner of "domestic violence".
Wednesday, March 31, 2010
Watch for Robertson v. U.S. ex rel. Watson
Proponents of domestic violence victimes are raising alarms over this case pending before the United States Supreme Court. At issue in Robertson is whether states are entitled to deputize "private attorneys general" to prosecute criminal cases on behalf of the state in domestic violence actions.
In Georgia, individuals are entitled to seek family violence and stalking protective orders under a Georgia law permitting issuance of such orders on the mere claims of the alleged victim, followed by a hearing. If the court finds that it more likely than not that some kind of domestic violence occurred, it can issue a variety of relief, including excluding the accused immediately from the home and cutting off all contact with the children. See O.C.G.A. § 19-13-3, et seq.
Violations of protective orders are crimes, and second violations of protective orders can be punishable as a felony, including substantial jail time. Unlike other criminal cases, which are brought by the government using government prosecutors, protective order cases are brought as civil cases by private litigants. The state in effect "deputizes" a private party (the accused) to prosecute the criminal action on its behalf. This is dangerous to the rights of the accused since the standard of proof is lower under this statute, a mere "preponderance of the evidence" rather the higher "guilt beyond a reasonable doubt" standard. Under our federal constitution, individuals charged with a crime cannot be convicted unless their guilt is proven beyond a reasonable doubt, and this lowering of the standard has been problematic across the board. Further danger for the alleged abuser exists since the private party accuser, who may be a party in a contested divorce proceeding, has different motives than a prosecutor representing the state. Litigants in divorce cases may be motivated to manufacture or embellish false claims of violence to obtain a better divorce decision.
In Robertson, the appellant argues that it is unconstitutional for a state to deputize a private attorney general in this way, and that the actions should be brought by government prosecutors who may be expected to screen such actions for legitimacy and sufficiency. If the court finds such action unconstitutional, it could roll back Georgia's statute, restoring the fundamental right to proof of guilt beyond a reasonable doubt for those accused of violence in the future.
No one can question the serious risk that domestic violence presents to members of a household. Our society cannot tolerate unjustified violence against individuals, male or female, and the use of violence to intimidate and control individuals. However, there is a real threat to our protection against criminal sanctions posed by the flood of domestic violence claims. We need to restore protection from the abusive power of the state being wielded by private biased parties.
In Georgia, individuals are entitled to seek family violence and stalking protective orders under a Georgia law permitting issuance of such orders on the mere claims of the alleged victim, followed by a hearing. If the court finds that it more likely than not that some kind of domestic violence occurred, it can issue a variety of relief, including excluding the accused immediately from the home and cutting off all contact with the children. See O.C.G.A. § 19-13-3, et seq.
Violations of protective orders are crimes, and second violations of protective orders can be punishable as a felony, including substantial jail time. Unlike other criminal cases, which are brought by the government using government prosecutors, protective order cases are brought as civil cases by private litigants. The state in effect "deputizes" a private party (the accused) to prosecute the criminal action on its behalf. This is dangerous to the rights of the accused since the standard of proof is lower under this statute, a mere "preponderance of the evidence" rather the higher "guilt beyond a reasonable doubt" standard. Under our federal constitution, individuals charged with a crime cannot be convicted unless their guilt is proven beyond a reasonable doubt, and this lowering of the standard has been problematic across the board. Further danger for the alleged abuser exists since the private party accuser, who may be a party in a contested divorce proceeding, has different motives than a prosecutor representing the state. Litigants in divorce cases may be motivated to manufacture or embellish false claims of violence to obtain a better divorce decision.
In Robertson, the appellant argues that it is unconstitutional for a state to deputize a private attorney general in this way, and that the actions should be brought by government prosecutors who may be expected to screen such actions for legitimacy and sufficiency. If the court finds such action unconstitutional, it could roll back Georgia's statute, restoring the fundamental right to proof of guilt beyond a reasonable doubt for those accused of violence in the future.
No one can question the serious risk that domestic violence presents to members of a household. Our society cannot tolerate unjustified violence against individuals, male or female, and the use of violence to intimidate and control individuals. However, there is a real threat to our protection against criminal sanctions posed by the flood of domestic violence claims. We need to restore protection from the abusive power of the state being wielded by private biased parties.
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