In our view, this is our most important recommendation for Guardian ad
litem reform. There would be an enormous positive ripple for children,
families and courts from this no cost change in statutory regulation
prohibiting all 'ex parte' between judge and GAL.
But ... exactly what is 'ex parte' communication between GALs and judges? Though it is complained of from Maine to California, most people don't know about it, even those families who may wonder why they are getting blindsided by apparently out-of-nowhere judicial decisions, when they appear in court for a hearing. 'Ex parte' communications of any sort are exclusionary, private, out-of the courtroom communications between one of the parties and a judge, and they are almost universally frowned on by the traditions of common law. The reasons for 'ex parte' communications being frowned on are because a private conversation with a judge is liable to impair judicial impartiality, the very cornerstone of judicial fairness. It presents one viewpoint only, that of the GAL- in our consideration of this issue, and, as we know, family matters are complex and there are multiple viewpoints that need open consideration.
More importantly, 'ex parte' communications between a GAL and judge can function as a hearing before the real courtroom hearing. Maine statutory regulations permit GALs to do 'ex parte', with the proviso that the parties are informed after the fact about the topic of the discussion. But ... there are exceptions to the requirement to inform the parties. 'Ex parte' may be done secretly, if the GAL claims that such secrecy would be "in the best interests of the child"! This subjective formulaic claim of "best interest" is one that is wide open to corrupt practices and abuse.
'De facto', secret 'ex parte' communications can transform the GAL into a paid, unaccountable, secret informer of the court. It is reminiscent of the distasteful human rights violations of the Inquisition and the m.o. of secret informers during the French Revolution's reign or Terror. It is anti democratic, it goes against common law traditions that respect fairness and openness in a trial. Other states are addressing this issue, and their stances are worth considering. It is an abhorrent practice that needs to end.
But it will not end as long as one aspect of the GALs role is conceptualized as "the eyes and ears" of the judge! Judges should not use GALs as private eyes!
But ... exactly what is 'ex parte' communication between GALs and judges? Though it is complained of from Maine to California, most people don't know about it, even those families who may wonder why they are getting blindsided by apparently out-of-nowhere judicial decisions, when they appear in court for a hearing. 'Ex parte' communications of any sort are exclusionary, private, out-of the courtroom communications between one of the parties and a judge, and they are almost universally frowned on by the traditions of common law. The reasons for 'ex parte' communications being frowned on are because a private conversation with a judge is liable to impair judicial impartiality, the very cornerstone of judicial fairness. It presents one viewpoint only, that of the GAL- in our consideration of this issue, and, as we know, family matters are complex and there are multiple viewpoints that need open consideration.
More importantly, 'ex parte' communications between a GAL and judge can function as a hearing before the real courtroom hearing. Maine statutory regulations permit GALs to do 'ex parte', with the proviso that the parties are informed after the fact about the topic of the discussion. But ... there are exceptions to the requirement to inform the parties. 'Ex parte' may be done secretly, if the GAL claims that such secrecy would be "in the best interests of the child"! This subjective formulaic claim of "best interest" is one that is wide open to corrupt practices and abuse.
'De facto', secret 'ex parte' communications can transform the GAL into a paid, unaccountable, secret informer of the court. It is reminiscent of the distasteful human rights violations of the Inquisition and the m.o. of secret informers during the French Revolution's reign or Terror. It is anti democratic, it goes against common law traditions that respect fairness and openness in a trial. Other states are addressing this issue, and their stances are worth considering. It is an abhorrent practice that needs to end.
But it will not end as long as one aspect of the GALs role is conceptualized as "the eyes and ears" of the judge! Judges should not use GALs as private eyes!
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