What is the point of a GAL?

[dipper]

Soc,

We are in VA.  Last custody hearing was 1/05.  After this, son got kicked out of school and set on fire.  His life was forever changed within months.  'I' filed for custody.  

When we first went to court for this, bm's lawyer was late - I didnt have one.  Court was rescheduled and a GAL was ordered.

I hired an attorney - turns out judge used to be with this law firm...so, we were assigned an older, retired judge.  

GAL was in OUR favor, 14 year old son wanted to move here, we showed that son has been in a major amount of trouble - including taking a knife to school and vandalizing his school laptop - which he is under criminal charges for.  Son told judge about his mother cursing me in front of him.  He told the judge they have received threats of eviction.  Last week BM borrowed money from her parents or they would have been kicked out Monday.  Court site proves son's word as she paid the rent two days after son said she borrowed money.  She has two unlawful detainers pending.  She told son she wants to move in with her parents - putting him in a different school district.

We showed that BM refused counseling, took him off of his ADHD medicine, and doesnt discipline.  Son got into trouble at the most twice a year when in our county - nothing serious as now.

The judge comes back and says that son should stay with BM - that he 'probably' would get into as much trouble if he lived here.......he ordered counseling for son and parent classes for myself and bm.

I am confused soc....The GAL was ordered by original judge...but,

* What good is a GAL if he is ignored?

*  Soc, based on the short version of what I told you....any thoughts....?

[socrateaser]

>Soc,
>
>We are in VA.  Last custody hearing was 1/05.  After this, son
>got kicked out of school and set on fire.  His life was
>forever changed within months.  'I' filed for custody.  
>
>When we first went to court for this, bm's lawyer was late - I
>didnt have one.  Court was rescheduled and a GAL was ordered.
>
>I hired an attorney - turns out judge used to be with this law
>firm...so, we were assigned an older, retired judge.  
>
>GAL was in OUR favor, 14 year old son wanted to move here, we
>showed that son has been in a major amount of trouble -
>including taking a knife to school and vandalizing his school
>laptop - which he is under criminal charges for.  Son told
>judge about his mother cursing me in front of him.  He told
>the judge they have received threats of eviction.  Last week
>BM borrowed money from her parents or they would have been
>kicked out Monday.  Court site proves son's word as she paid
>the rent two days after son said she borrowed money.  She has
>two unlawful detainers pending.  She told son she wants to
>move in with her parents - putting him in a different school
>district.
>
>We showed that BM refused counseling, took him off of his ADHD
>medicine, and doesnt discipline.  Son got into trouble at the
>most twice a year when in our county - nothing serious as
>now.
>
>The judge comes back and says that son should stay with BM -
>that he 'probably' would get into as much trouble if he lived
>here.......he ordered counseling for son and parent classes
>for myself and bm.
>
>I am confused soc....The GAL was ordered by original
>judge...but,
>
>* What good is a GAL if he is ignored?
>
>*  Soc, based on the short version of what I told you....any
>thoughts....?

You have only one choice: appeal on grounds of abuse of discretion, i.e., that no reasonable trier of fact could make the decision that this judge made in view of the facts.

The statement that the child would probably get into as much trouble is irrelevant to the decision, thus it is definitely an abuse of discretion. What matters is simply whether or not there has been a substantial change, and then who is the better parent going forward.

I think you could win on appeal, but it won't be cheap to find out. You need "findings of facts and conclusions of law" from the judge, so as to be able to assess exactly what you're appealing from. If you didn't get them, then your attorney should have asked for them, and should ask for them now (although by doing so now, you will be telegraphing your intent to appeal and the judge will likely make a very careful finding to keep him/herself out of do do.

But, it's still your only option.

[dipper]

Soc,

During trial, BM's attorney brought up past issues - even from our married days.  I thought nothing could be brought up beyond the last court order.

The judge dismissed my son's assualt charge against BM without hearing any comments - saying that son probably deserved it, the magistrate should have never filed it, all children need to be hit at times, and he couldnt very well charge the mother with assault while sending the child home with her.

The judge further stated that under usual circumstances he went along with a child's wishes at age 14, but he wasnt going to give my son what he wanted.  

But, the thing that most bothers me is the judge made the comment that he did not know why I would even want my son to live with me..(this after stating he could see my son being in very serious trouble as he gets older).

Soc, arent past issues supposed to be banned from coming into the present hearing?


As far as an appeal and the judge covering his butt, shouldnt there be transcripts of all that was said?

[socrateaser]

>Soc, arent past issues supposed to be banned from coming into
>the present hearing?

Res Judicata (claim preclusion) bars parties from relitigating past claims already litigated and judged on the merits in a prior action. Also, all claims that arise from the same transactions or occurrances must be raised during the same action.

Ex: A sues B for personal injury stemming from an auto collision and loses. If A sues B for property damage to the vehicle in a subsequent action, that suit will be barred by Res Judicata, because it should have been brought at the same time as the personal injury suit.

Collateral Estoppel (issue preclusion) bars parties from relitigating any individual issue that was previously litigated in a different action.

Ex: A sues B for personal injury and loses, but it is proven during the action that B was blackmailing C via a cell phone conversation at the time of the accident. C sues B for infliction of emotional distress, and B denies the blackmail incident. B is collaterally estopped from relitigating the issue, which was already litigated during the suit with A.

As to your exact situation, I don't know the facts, so I can't tell if you had a legitimate Res Judicata defense to some of the other party's allegations in this action.

>As far as an appeal and the judge covering his butt, shouldnt
>there be transcripts of all that was said?

Yes, but it makes it a lot easier when the judge actually issues a findings and conclusions, because then he must apply the law to the facts and make his conclusion, and he can't say something like, the kid "probably" would be in trouble in the other parent's home, because there aren't any facts to support that contention.

[dipper]

Soc, in 2004 when this first went to court, BM used 'my' past against me - drug use.  She said that I was not a good father.  She also brought up an incident in which I had let my then 12 year old son stay at home for an hour or less as I went to the grocery store (I lived beside my mother and she was home)....My son got into some tiny little liquor bottles and diet pills.  He was sleepy, but no medical emergency.

After I married in 2004, there was an incident involving my son and stepdaughter that was serious -and my wife wanted son to go into counseling and she considered calling the police just to talk to him.  It wasnt serious enough for her to want charges pressed.

All of this has been presented by my ex during our previous other two hearings for custody - which DID result in a court order allowing her to retain custody.  This time, there were new lawyers on all fronts....ours and GAL..and a new judge.  They did not know that the information she was discussing was OLD, dealt with information.

She also perjured herself on the stand on several matters that I can prove......but, my lawyer did not catch it at the time.  

I am naive about appeals - can you 'retry' the case or is it simply fighting the judge's decision based on what was actually presented at the time?

Soc, is there anything I can do about the information she presented that should never have came into play?

On appeal, are you allowed to argue the points made during the first trial (such as the lies she told)?

[socrateaser]

>Soc, is there anything I can do about the information she
>presented that should never have came into play?

You are complaining about the same facts being used in a subsequent process, not the same claim or issue, and there's nothing prohibited about using the same facts again to prove a new issue. Furthermore, the facts apparently proved the issues against you in prior proceedings, thus they are admissible as proven facts against you in a subsequent proceeding.

The only issues for which you can claim res judicata are those that appear in the court's "findings and conclusions," i.e., if the court says, IN ITS FINDINGS AND CONCLUSIONS, that the other parent gets custody "because" you were on drugs in a prior proceeding, then that issue can't be raised again, unless it is proven that you have been using drugs since the last court order. HOWEVER, your opponent can offer the fact that you were found using drugs in a prior proceeding to prove that you have a habit of using drugs, if drug use is an issue in a subsequent proceeding.

Res Judicata/Collatera Estoppel is a difficult concept, even for attorneys, so don't think you're alone in misunderstanding -- it's hard to catch a problem when it's happening in the courtroom.

>On appeal, are you allowed to argue the points made during the
>first trial (such as the lies she told)?

On appeal, you argue any/all of the following, and nothing else is permitted:

1. That the findings and couclusions of the court were not based on the facts;
2. That the court misinterpreted the law;
3. That the court misapplied the law to the facts;
4. That the court's determination based on the facts was unreasonable, even if all of the above were true and correct (i.e., abuse of discretion).

[dipper]

Soc, in 2004 when this first went to court, BM used 'my' past against me - drug use.  She said that I was not a good father.  She also brought up an incident in which I had let my then 12 year old son stay at home for an hour or less as I went to the grocery store (I lived beside my mother and she was home)....My son got into some tiny little liquor bottles and diet pills.  He was sleepy, but no medical emergency.

After I married in 2004, there was an incident involving my son and stepdaughter that was serious -and my wife wanted son to go into counseling and she considered calling the police just to talk to him.  It wasnt serious enough for her to want charges pressed.

All of this has been presented by my ex during our previous other two hearings for custody - which DID result in a court order allowing her to retain custody.  This time, there were new lawyers on all fronts....ours and GAL..and a new judge.  They did not know that the information she was discussing was OLD, dealt with information.

She also perjured herself on the stand on several matters that I can prove......but, my lawyer did not catch it at the time.  

I am naive about appeals - can you 'retry' the case or is it simply fighting the judge's decision based on what was actually presented at the time?

Soc, is there anything I can do about the information she presented that should never have came into play?

On appeal, are you allowed to argue the points made during the first trial (such as the lies she told)?

[socrateaser]

>Soc, is there anything I can do about the information she
>presented that should never have came into play?

You are complaining about the same facts being used in a subsequent process, not the same claim or issue, and there's nothing prohibited about using the same facts again to prove a new issue. Furthermore, the facts apparently proved the issues against you in prior proceedings, thus they are admissible as proven facts against you in a subsequent proceeding.

The only issues for which you can claim res judicata are those that appear in the court's "findings and conclusions," i.e., if the court says, IN ITS FINDINGS AND CONCLUSIONS, that the other parent gets custody "because" you were on drugs in a prior proceeding, then that issue can't be raised again, unless it is proven that you have been using drugs since the last court order. HOWEVER, your opponent can offer the fact that you were found using drugs in a prior proceeding to prove that you have a habit of using drugs, if drug use is an issue in a subsequent proceeding.

Res Judicata/Collatera Estoppel is a difficult concept, even for attorneys, so don't think you're alone in misunderstanding -- it's hard to catch a problem when it's happening in the courtroom.

>On appeal, are you allowed to argue the points made during the
>first trial (such as the lies she told)?

On appeal, you argue any/all of the following, and nothing else is permitted:

1. That the findings and couclusions of the court were not based on the facts;
2. That the court misinterpreted the law;
3. That the court misapplied the law to the facts;
4. That the court's determination based on the facts was unreasonable, even if all of the above were true and correct (i.e., abuse of discretion).

[dipper]

Soc,

What court hears the appeal on a custody case?


Do both parties to the custody case appear to protect their own interest or is it just the party appealing as they are the ones trying to prove the judge's order in error?



While the case has to be argued on law, would the unprofessional comments the judge made help in showing his judgement was flawed?

[dipper]

Soc,

As time is limited on making an appeal, I would like your knowledge on some burning questions.....thank you

What court hears the appeal on a custody case?


Do both parties to the custody case appear to protect their own interest or is it just the party appealing as they are the ones trying to prove the judge's order in error?



While the case has to be argued on law, would the unprofessional comments the judge made help in showing his judgement was flawed?


Also, ss had a GAL....would he still be responsible to present ss' interest in the appeal?