How to Complain about Family Court Judges, Lawyers, and GALs
© Shane Flait (2012)

Fathers serve their children and themselves best by being aware of their rights and the judicial process they will face - as well as the strategies they must consider during a divorce or paternity action. Using their knowledge to complain about judges, lawyers and guardians ad litem (GALs) is an important strategy.  

Recognizing ‘unfairness’ and complaining about it

In our Family Court process, we need to recognize when unfairness can occur. This means ‘due process’ violations. Three types of court personnel to watch for unfairness that represents due process violations are the judge, the lawyers, and the GAL.

With only a bench trial (i.e. no jury) in family court, the burden of fairness in judging and fact finding falls solely onto judge. His actions, pronouncements, and demeanor determine when fairness is not in effect – when he or she is not being fair to you. He must comply with the judicial code.

Lawyers - yours and the opposing attorney - are often known for not affording you fairness in dealings. We’ll look at the lawyer code below as well.

Lastly, there is often a Guardian Ad Litem (GAL) assigned to your case. She is often very biased in her words or attitude. She mostly gathers ‘hearsay’ information to construct her report that the judge will use in his judgment of custody and visitation. Look for unfairness in her process and behavior.

The Judicial Code

The judicial code is found in your State’s Rules of Court. They’re essentially the same in every state. A couple of rules are:

A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not permit staff, court officials and others subject to the judge's direction and control to do so.

A judge should be faithful to the law and maintain professional competence in it. He should be unswayed by partisan interests, public clamor, or fear of criticism.

You can see that the code is pretty straight forward as to what it means.

File a judicial conduct complaint if your judge violated the word or spirit of the code. Ask yourself:

Were you mistreated?

Did the judge lack impartiality?

Did the judge demonstrate bias or prejudice?

Did the judge refuse to follow the necessary procedure?

Were you allowed to be fully heard to competently make your case?

Write up what the judge did wrong and list it as a ‘misconduct’- not an error of law - since this is the Conduct Commission you will address and they are only concerned with ‘misconduct’.

You simply state that the judge committed a misconduct by doing ‘such and such’ and you fill in the rest. You’ll need to submit the hearing transcript to prove what you said is true. Then you’ll refer to the relevant cannon (rule) in the judicial code the judge violated. That’s it!

Family court judges violate the judicial code all the time. They consider they have immunity for all they do, and ‘judge’ and ‘behave’ as they will. We need to rein them in.

The Lawyer’s Code

This is in your State’s Rules of Court – listing the canons (i.e. rules) that a lawyer must adhere to. Learn to go after lawyers for inappropriate behavior. They violate the lawyer’s code all the time. That’s because they are overseen by other lawyers – not the public.

Typical rules include: When representing a client within the bound of the law he will not knowingly make a false statement of law or fact, counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent or use perjured testimony or false evidence.  There are more to be aware of.

You complain about a bad lawyer by referring to the Lawyer’s Code to see what canon he violated. Then call up the Board of Bar Overseers (the BBO) and ask for their complaint form. You can add more pages explaining the violations

How to complain:

• Record the violation if it occurs in court
• Make arguments on how the violation occurred and then cite the part of the lawyer code that is relevant
• Support these violations with proof (court transcripts, etc)
• Include all relevant documents and transcripts (send only copies!)

Complaining about a bad GAL – impartiality and accountability

A GAL is a fact finder, investigator and evaluator of family circumstances. He’s not necessarily an attorney so he doesn’t have to file an appearance, doesn’t have the right to do discovery, and is not noticed on motions and pleadings.

The GAL writes a report to the judge, which is open to all parties, on what the GAL thinks of the parent’s behaviors and what he believes is the best interest of child. The GAL written report naturally is filled up with ‘hearsay’ since he simply asks people what happened when and where. Hearsay will be admissible as a written report – but not if he is put on the stand and requested to testify to his reported statements and observations.

Your duty is to put him on the stand and object to his hearsay testimony (of the report) which is damaging to you and present any evidence that contradicts what he says. Object to GAL filing the report without your presence to challenge him in a hearing

The judge cannot relinquish his authority to a GAL or a child’s attorney. The judge must be responsible for all decisions of the court. 

How do you Complain about a GAL:

Submit a motion to vacate the appointment for any clearly prejudice statements, procedures, and actions he takes.

Motion to Court to give clear direction to the GAL –what specifically he should be doing – and perhaps a time limit to complete. – if you’re paying!

 

 

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Shane Flait writes on issues confronting freedom