The appointment of GAL-Attorney's are vague and it allows the violation of the due process and equal protection clauses provided in the Fourteenth Amendment to the United States Constitution by (a) failing to give parties the opportunity to examine a proposed GAL-Attorney prior to appointment, (b) allowing the judiciary to abrogate their judicial responsibilities by both delegating the determination of parental rights to uncredentialed individuals without the requisite knowledge to perform that task, (c) allowing, without any safeguards, otherwise unreliable hearsay into the record under the guise of being a GAL-Attorney's reports, (d) allowing GAL-Attorney's to answer hypotheticals and to indulge in speculative testimony,
(e) allowing the admission of a GAL-Attorney's reports into evidence prior to the parties having an opportunity to cross-examine the GAL-Attorney and rebut the reports and any other materials adverse to the party, (f) not safeguarding the fundamental constitutional due-process rights of the subject class of persons affected by the statute,5 and (g) not affording Ms Bruns the same protection of the laws as other parties to lawsuits in other contexts have, to wit, the right to present evidence, to cross-examine those presenting evidence against them,6 to rebut materials adverse to her,7
the right to have a
qualified person or persons as fact-finder(s).
On December 14, 2001, without a hearing and without any written findings of fact or conclusions of law, Judge Carpenter issued an order allowing removal of the children.
Ms Bruns had no access either to those who were the source of the GAL-Attorney's hearsay or to the GAL-Attorney or her file.
Such failures in the statute have led to conduct that violates substantive due process. "'"[S]ubstantive due process" prevents the government from engaging in conduct that "shocks the conscience," Rochin v. California, 342 U.S. 165, 172 (19
A statute which violates the equal protection or substantive due process of the affected class is unconstitutional.
Here, the penalty is extreme. The parent whom the GAL-Attorney finds against is deprived of her rights to be the custodial parent or to visit with her children. Cf. Lee, supra at 532.
That level of interference would justify application of strict scrutiny in determining the statute's constitutionality. I'd
And the means chosen bears no rational relationship to the objective because (a) the court failed to give Ms Bruns the opportunity to examine a proposed GAL-Attorney prior to appointment,8, (b) the Court failed to set out the credentials and knowledge required of the GAL-Attorney appointed, (c) the court failed to set out the standard to which the GAL-Attorney's must work,(d) the court failed to set out whether a GAL-Attorney Mary Benedict was to be deemed by a judge as an expert or a lay witness, (e) the court failed to state whether the so-called investigative report is to be admitted as evidence without an evidentiary hearing, or whether there are mandatory safeguards to protect the parties who were allegedly investigated.
In theory, neither party is prejudiced. In practice, the appointed GAL-Attorney is recommended by one party and the second party is prejudiced because he/she (a) does not know the potential GAL-Attorney, (b) has not seen the credentials or curriculum vitae of the potential GAL-Attorney, (c) has not had the benefit of conducting a voir dire of the potential GAL-Attorney, and (d) if even of average means, cannot afford to pay the literally thousands of dollars to properly depose the court-appointed GAL. (In Bruns case, the GAL-Attorney sought expert fees, though she was anything but an expert. She ultimately concealed evidence.
The judicial branch has held that the statute, a GAL-Attorney need not "possess special credentials or knowledge concerning in social work, psychology, or psychiatry
The appointment of GAL-Attorney's who need no credentials relevant to the task they are appointed to perform, who do not work to any standards, and who are given quasijudicial immunity is not only violative of the clearly established and secure rights of each and every party to any action in which such a GAL-Attorney is appointed, which guarantees accountability of the three branches of government to the people.
Given that the above-cited failures led to inconsistent results and "serious due process concerns for the people involved in a case [which] jeopardize the soundness of the eventual custody decision.
Town of Holbrook v. Town of Randolph, 374 Mass. 437, 441 (1978)
Michigan does not ensure that GALs are properly trained to make critical decisions, (b) no standards exist for how GALs should conduct their investigations or report their findings to the court, (c) [t]he GAL system in Michigan does not effectively incorporate the standards of the Presumption of Custody Law, (d) [t]here is no widely understood process regarding how to file a complaint concerning a Guardian ad litem,
(e) [t]he criteria to become a GAL in the Probate and Family Court are minimal, such as having sufficient malpractice insurance and being in good standing with the GAL-Attorney's licensing board for their underlying profession, (f) there is no structure in place to ensure that GALs entering the system from various professional backgrounds receive training in areas with which they are not familiar, but will encounter in their capacity as a GAL.
"there are no guidelines describing who a GAL should interview or what questions the GAL should ask in order to make an accurate assessment of the custody situation, (h)
[t]his lack of standards can create problems with the fairness and accuracy of a GAL's assessment, (i) [t]he lack of standards for the reports can create serious due process concerns for the people involved in a case and jeopardize the soundness of the eventual custody decision, (j) without a consistent standard for what a report should include, it is difficult to evaluate the quality of a GAL's work, (k) "the court does not maintain adequate data documenting the total number of cases involving GALs or complaints about GALs, (l)
[w]ithout such documentation, there is no way to adequately evaluate the quality of a GAL's work or the effectiveness of the GAL system.
Judge Carpenter unlawfully and knowingly acted contrary to the requirements of mandatory statutes,
]. Her unlawful acts were forbidden by the State and were thus expressly committed in the absence of jurisdiction. Where Judge Carpenter was "not doing the business which the sovereign has empowered [her] to do or [she was] doing it in a way which the sovereign has forbidden, [her] actions [were] ultra vires [her] authority and therefore may be made the object of specific relief. . . . and in such cases the relief can be granted, without impleading the sovereign, only because of the officer's lack of delegated power.
The custody of the only minor child Alida is material to the claims of this suit. The damage to the children has already been caused by Judge Carpenter's intentional violation of the existing laws cited.
The primary issue are created by Section 1983 in favor of persons who are deprived of rights secured by Federal law.
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