My guy needs a guardian ad liteum for his divorce preceedings

[Mellymel418]

So I went to the county today where his soon to be ex filed, and found out that he needs a new guardian ad litem to represent him since he is incarcerated. He had one when it was original filed but he was paroled shortly after being served and they couldnt find him! So the guardian was dismissed. The clerk told me today that his ex's attorney will need to petition the court for a new guardian, well she isn't very good at doing her job and very hard to get a hold of. So Im wondering can he write his own petition and have it sent in on his case to ask the judge to grant him one? Or do I need to contact this attorney she hired and ask her to petition the court? This is in Kentucky! And we have till Aug 9 to get something in or the case will go infront of the judge for dismal because nothing has been done on this case for a year on that date!

Thanks for any help! And hope that all made sense ^ there

[yourself]

Why does he need a GAL? A GAL represents the best interests of a person and not always the actual interests of a person (frequently, the best interests of the person are different from what they want and only when there's a competency problem is a GAL routinely appointed. They are frequently used in divorced proceedings to inform the court on behalf of the children.)

Generally, the attorney from either side or the judge can request a GAL be appointed. It doesn't have to come from one side or the other. A GAL isn't a substitute for an attorney.

I'm not sure how KY does it, but I've had to appear in IA, IL, FL, and MA dealing with GAL issues, and I've never seen one appointed to take care of a person just because he's incarcerated. He needs an attorney. An attorney will get him traction. An attorney filing an appearance on his behalf will be more than enough action that the case won't be dismissed.

[Mellymel418]

Originally Posted by yourself

Why does he need a GAL? A GAL represents the best interests of a person and not always the actual interests of a person (frequently, the best interests of the person are different from what they want and only when there's a competency problem is a GAL routinely appointed. They are frequently used in divorced proceedings to inform the court on behalf of the children.)

Generally, the attorney from either side or the judge can request a GAL be appointed. It doesn't have to come from one side or the other. A GAL isn't a substitute for an attorney.

I'm not sure how KY does it, but I've had to appear in IA, IL, FL, and MA dealing with GAL issues, and I've never seen one appointed to take care of a person just because he's incarcerated. He needs an attorney. An attorney will get him traction. An attorney filing an appearance on his behalf will be more than enough action that the case won't be dismissed.

I was told they originally gave him the guardian ad litem because when she filed he was incarcerated and that the guardian was placed for him to protect his rights in the case. Well when the guardian tried to contact him after being appointed he was already paroled and couldn't be found so the guardian filed a report stating that he couldn't find him and he was dismissed from the divorce proceedings in 2010 and they sent a warranty attorney out looking for him again he wasn't found and the warranty agent was dismissed in 2011. He was arrested in Jan 2011 4 days before the warranty attorney was dismissed. Her attorney filed a motion for decree but it was sent back because they were ordered by the judge to do family in transitioning program and since that wasn't completed her motion for decree wasn't granted. They didn't know he was incarcerated at the time because that would have waved the family in transitioning program and her motion would have been granted. The clerk told me today that he needed to get a guardian ad litem appointed since he is incarcerated and that her attorney needed to file a petition to ask the courts to appoint him one. I can't get her to send him the necessary papers to get this process going, therefore asking her to petition for a new guardian to be appointed will probably be useless. I am not sure if he's getting a guardian ad litem as they do have a child involved and if thats why they are saying he needs one? I have no clue just going by what I was told by the clerk today as she went over the file with me.

I wish we could get him an attorney Ive tried to find an attorney in the area where the case was filed and because he's incarcerated Im not getting any returning calls.

[yourself]

Talk with Legal Aid - they can help you with either securing an attorney for your man, or with a POA so you can hire an attorney on his behalf.

KY must differ drastically from the jurisdictions where I've worked. GALs in divorces are usually only appointed for the KIDS, or an intellectually or emotionally incompetent adult (think coma patient, psychotic breaks, dementia and the like), not incarcerated individuals.

I would think a letter from your LO to the judge referencing the case, asking that it go forward, letting the judge know your LO's prison number, current address, and current sentence, may be enough to stay the imminent dismissal since that would be some sort of action within a year. Further, he should request a copy of the petition for dissolution and a reasonable time to answer that petition with an agreement that if he doesn't answer by a date certain, he understand he'll have admitted to every one of her claims.

Personally, if he wants to control the divorce, he should file his own petition for dissolution, but like I said, KY apparently has some drastically different laws. Consulting legal aid for help understanding the process of divorce in your area would be a good thing. POA and hiring one would be a good thing. Getting an interview and letting the attorney (not the secretary) know that he's incarcerated but there's money for a divorce would be a good thing.

At this point, he knows a petition was filed. He doesn't know what was alleged in the petition. Allowing a divorce to happen without knowing that, especially when a child is involved would be a very bad thing.

[MOM TO 5]

Yourself.. an an FYI... some states, Virginia included, have statutes requiring that an incarcerated person be assigned a GAL as they are deemed to be "incapacitated". I assume Ohio has similar statutes.

[Mellymel418]

Originally Posted by MOM TO 5

Yourself.. an an FYI... some states, Virginia included, have statutes requiring that an incarcerated person be assigned a GAL as they are deemed to be "incapacitated". I assume Ohio has similar statutes.

Actually I'm in Ohio he is from Kentucky. And that's what I was guessing is the case in Kentucky like in Virginia after speaking with the clerk yesterday and going through his file. Because in Ohio a GAL is added to a divorce for the protection of the minor child/ren involved in the divorce. That's why I assumed when we originally found out that he had GAL back in January of this year it was for the protection of his minor child. But then found out yesterday it was for him because he was incarcerated at the time of the filing of the petition. But then he was paroled and the GAL couldn't find him and the GAL was dismissed from the case prior to us even knowing he had a GAL. Now he's incarcerated again and needs either an attorney or GAL to go forward with the divorce. He can't afford an attorney and really neither can I, but Ill check to see if he get something from legal aid in Kentucky.

[Mellymel418]

Originally Posted by yourself

Talk with Legal Aid - they can help you with either securing an attorney for your man, or with a POA so you can hire an attorney on his behalf.

KY must differ drastically from the jurisdictions where I've worked. GALs in divorces are usually only appointed for the KIDS, or an intellectually or emotionally incompetent adult (think coma patient, psychotic breaks, dementia and the like), not incarcerated individuals.

I would think a letter from your LO to the judge referencing the case, asking that it go forward, letting the judge know your LO's prison number, current address, and current sentence, may be enough to stay the imminent dismissal since that would be some sort of action within a year. Further, he should request a copy of the petition for dissolution and a reasonable time to answer that petition with an agreement that if he doesn't answer by a date certain, he understand he'll have admitted to every one of her claims.

Personally, if he wants to control the divorce, he should file his own petition for dissolution, but like I said, KY apparently has some drastically different laws. Consulting legal aid for help understanding the process of divorce in your area would be a good thing. POA and hiring one would be a good thing. Getting an interview and letting the attorney (not the secretary) know that he's incarcerated but there's money for a divorce would be a good thing.

At this point, he knows a petition was filed. He doesn't know what was alleged in the petition. Allowing a divorce to happen without knowing that, especially when a child is involved would be a very bad thing.

I have her petition, actually I have every piece of paper that has been filed so far, the clerk was nice enough to let me have copies after our long talk yesterday going through all the paperwork.

In her petition for dissolution she claims its irretrievably broken with no reasonable prospect of reconciliation.
She's asking for sole custody of the minor child
She's asking for child support
that martial property be divided
debts be divided
and for all further relief that she may be entitled too.

Pretty straightforward.

I've told him what you said about writing a letter to the judge so Im gathering all that info for him now and going to send it to him, so that he can write to the judge. Hopefully that will work, and I'm going to contact legal aid in the county that she filed and see about getting him represented through them. If for only to go walk into the judge's office to petition a new GAL.

Thanks for all your help on this! I appreciate you so much for what information you have given me.

[Patrickj]

Originally Posted by Mellymel418

I have her petition, actually I have every piece of paper that has been filed so far, the clerk was nice enough to let me have copies after our long talk yesterday going through all the paperwork.

In her petition for dissolution she claims its irretrievably broken with no reasonable prospect of reconciliation.
She's asking for sole custody of the minor child
She's asking for child support
that martial property be divided
debts be divided
and for all further relief that she may be entitled too.

Pretty straightforward.

I've told him what you said about writing a letter to the judge so Im gathering all that info for him now and going to send it to him, so that he can write to the judge. Hopefully that will work, and I'm going to contact legal aid in the county that she filed and see about getting him represented through them. If for only to go walk into the judge's office to petition a new GAL.

Thanks for all your help on this! I appreciate you so much for what information you have given me.

This is a older thread here at PTO that explains guardian at litem ( read second post in the thread http://www.prisontalk.com/forums/showthread.php?t=164482 also KY Rules of Civil Procedure Rule 17 RULE 17 PARTIES PLAINTIFF AND DEFENDANT; CAPACITY CR 17.04 PRISONERS this rule pertains to prisoners
http://kybar.org/247

[Mellymel418]

Originally Posted by Patrickj

This is a older thread here at PTO that explains guardian at litem ( read second post in the thread http://www.prisontalk.com/forums/showthread.php?t=164482 also KY Rules of Civil Procedure Rule 17 RULE 17 PARTIES PLAINTIFF AND DEFENDANT; CAPACITY CR 17.04 PRISONERS this rule pertains to prisoners
http://kybar.org/247

Thanks that was very helpful. I didn't even see that post don't know how I missed it. I appreciate the info! So Im going to see about him basically submit a letter/motion for the guardian ad litem. So they can finally get this process over! Its been going on way to long!

[DRUID1208]

a GAL is not just for kids or theose who have a guardianship they all so are for inmates as well you see your thinking of the case were a kid needs or a adult needs a guardianship that would in term be a ward of the court what your man is would be called a ward of the state it is true a lot of states use this term to mean same thing as ward of the court but if you go back and read the way law started the terms a ward of the court is someone who has a guardian as in the form of guardianship a ward of the state means someone the state cares for a ward of the state rooted meaning is some one who is in prison it is in my thouts sad that states use the two terms as if they mean the same thing but yes a GAL can be apointed for a inmate just as a GAL can be for someone in a guardianship case hope this is helpfal to you good luck

[yourself]

Originally Posted by DRUID1208

a GAL is not just for kids or theose who have a guardianship they all so are for inmates as well you see your thinking of the case were a kid needs or a adult needs a guardianship that would in term be a ward of the court what your man is would be called a ward of the state it is true a lot of states use this term to mean same thing as ward of the court but if you go back and read the way law started the terms a ward of the court is someone who has a guardian as in the form of guardianship a ward of the state means someone the state cares for a ward of the state rooted meaning is some one who is in prison it is in my thouts sad that states use the two terms as if they mean the same thing but yes a GAL can be apointed for a inmate just as a GAL can be for someone in a guardianship case hope this is helpfal to you good luck

Having functioned in a court as a GAL, I know what a GAL is about in my states. As stated, they are used for those who are considered incompetent. In my states, that wouldn't mean an inmate. Get it?

See? this is why jurisdiction matters. An attorney in one jurisdiction isn't qualified in another. But, you're coming into this conversation pretty late.

A ward of the court is not necessarily incompetent for a particular purpose. A person committed to a mental facility may still have full capacity to take care of his/her property, execute a will, and a myriad of other competencies.

I ought to know - I've represented such people numerous times, both as an attorney and a GAL.

Do you know the difference between an attorney for a person and an attorney acting as GAL? Warning - it's a trick question.

[4ever love]

Even though the clerk of the Court may have been helpful, it states everywhere on placards, that the clerk's are NOT ALLOWED to give legal advice. This would be one such reason. Confusion, at best.

Geting a consultation from a local attorney is almost always "free". A letter from the inmate giving Notice to the Court of his whereabouts, including the return address as a stamp from the prison, will get him some relief.

Yourself has given you some really great information and explained it well.

[4ever love]

Originally Posted by Patrickj

This is a older thread here at PTO that explains guardian at litem ( read second post in the thread http://www.prisontalk.com/forums/showthread.php?t=164482 also KY Rules of Civil Procedure Rule 17 RULE 17 PARTIES PLAINTIFF AND DEFENDANT; CAPACITY CR 17.04 PRISONERS this rule pertains to prisoners
http://kybar.org/247

This is a Civil Procedure ONLY rule pertaining to civil matters. Divorce is a Family Matter, different department in all Courts throughout the states.

In this case, Yourself said it best, the inmate either needs to retain an attorney to best represent him, especially with child, or a POA needs to be signed so MellyMel418 can proceed with the divorce with the instructions from her incarcerated man. Because even if an attorney is hired by the Court to represent the child, the inmate will not fair well and later down the road will have to file another Order to Show Cause/Request for Modification with regards to the sole custody. That is, if he's interested in having a legal say in that child's life.

There are also great family law workshops where attorneys help out in filling out the legal paperwork!

Court clerks are NOT ALLOWED to give legal advice and often do make mistakes. Helpful, yes, in procedural duties, but not in legal advice.

Remember what PTO posts: fact-check all information. Especially, when there is a child's life involved here.

Blessings!!

[yourself]

I am not a KY licensed attorney. I am not qualified to do anything but explain some legal mumbo-jumbo and refer you to legal counsel in your jurisdiction. There is no substitute for qualified legal counsel in your jurisdiction. Paralegals are great, but they cannot offer legal advice. jailhouse lawyers are great, but they should not be offering legal advice (but they get some really great experience in their jurisdiction and can make wonderful paralegals and attorneys after the proper schooling on the outside). People's own personal experiences are great - they are valid, personal experiences, and sharing them with others is a tremendous help to those trying to navigate the muddy waters of this system.

None of us are substitutes for properly licensed local attorneys. You might not get the answer you want, and it will cost you some money, but it's better than admitting all of the allegations you've never read, especially when a child is involved.

I know it's expensive. I know money is tight. But, we're talking about the difference between being a parent and possibly taking a big step down the road towards the termination of your parental rights.

Local legal counsel. Seriously. A GAL never represents a party. NEVER. A GAL may be appointed for somebody, but the GAL represents a theoretical "best interests" which may or may not be your interests. The GAL issues a report that the judge reads, and representing that theoretical "best Interest", can call and question witnesses. A GAL is not a substitute for legal counsel representing a person's actual interests.

Here's an easy illustration of how a person's interests can differ from the GAL's purpose: a child has an attorney and a GAL. The child tells the attorney, "I want to live with Daddy". The attorney offers a zealous representation to get that child living with Daddy - it doesn't matter who Daddy is, what Daddy's doing, or where Daddy is living. The GAL listens to the child, interviews Daddy, Mommy, and any other relevant person. That information is distilled through the filter of statutes that instruct the GAL how to figure out what's the child's "best interests" and writes a report and makes a recommendation. So, if Daddy is an active drug addict living out of a car, or engaged in behavior that creates a risk to the child and Mommy's living arrangements are safe, the GAL isn't going to be recommending Daddy. If Mommy's living arrangements are just as bad as Daddy's, the GAL may very well recommend CPS come in and the child become a ward of the state until an appropriate family member can be found or suitable foster placement can be made.

KY may handle things differently, so it is imperative good, local legal counsel is procured to handle this matter.

[bumblebee37]

Yup that's how it works in the courts in Texas and Oklahoma too, 'yourself'. I was confused. Thanks.

[Mellymel418]

All of these posts have been very insightful! And I appreciate all of your input! Id love to hire him an attorney! And I have a POA that I need to fill out and get back to him and its just as confusing as this divorce matter!

Im going to contact the legal aid of Lexington and ask if they can help him or direct me to someone that can help him! We don't really have the money for a hired attorney but Ill do what we need to, to make sure his rights with his child are protected! Thats really all that matters in this whole process is his child anyways!

[yourself]

options for low/no cost legal help:

1. Legal Aid
2. Clinics at law schools
3. check your memberships - a lot of time unions and other groups have attorney services and referrals for members
4. check with your HR department (if any). Sometimes they have a contract to help provide legal services to employees and their families
5. military? use military legal service
6. ask at your place of worship
7. special groups - sometimes if you're disabled, or have a condition, or have an impairment, advocacy groups for that impairment can help point you in the direction of decent low cost legal help. If your issue is also their issue, you might wind up with full service legal help for free.
8. check the cards in your wallet - memberships sometime come with access to legal referral and discounts.

And remember - you can negotiate fees. You can ask about payment plans.

[Mellymel418]

Originally Posted by yourself

options for low/no cost legal help:

1. Legal Aid
2. Clinics at law schools
3. check your memberships - a lot of time unions and other groups have attorney services and referrals for members
4. check with your HR department (if any). Sometimes they have a contract to help provide legal services to employees and their families
5. military? use military legal service
6. ask at your place of worship
7. special groups - sometimes if you're disabled, or have a condition, or have an impairment, advocacy groups for that impairment can help point you in the direction of decent low cost legal help. If your issue is also their issue, you might wind up with full service legal help for free.
8. check the cards in your wallet - memberships sometime come with access to legal referral and discounts.

And remember - you can negotiate fees. You can ask about payment plans.

Thanks for all this info! Now to figure out this POA so if I do have to hire a lawyer I have that filled out properly and I'm able to use it to hire one

Its not as simple as I thought it was going to be to fill out! He got it at his federal prison and sent it to me, but I haven't filled it out or sent it back as Kentucky picked him up as it was in the mail to me! Guess I best be getting busy on it eh! ...lol

[yourself]

Listen, if you're having trouble and the form you're trying to use is more than a year old, you're going to need to make sure it's the current form. Go to Legal Aid in KY and get some help from somebody who can sit with you and explain things.

[Mellymel418]

Originally Posted by yourself

Listen, if you're having trouble and the form you're trying to use is more than a year old, you're going to need to make sure it's the current form. Go to Legal Aid in KY and get some help from somebody who can sit with you and explain things.

its not a year old he just sent it to me in May, Its just one Ive never seen before it different then the one I filled out for my uncle when I got a POA over his affairs. Im actually in Ohio not Kentucky. I'll get it figured out!

[yourself]

Originally Posted by Mellymel418

its not a year old he just sent it to me in May, Its just one Ive never seen before it different then the one I filled out for my uncle when I got a POA over his affairs. Im actually in Ohio not Kentucky. I'll get it figured out!

The caveat is general - any form that's over a year old (the form, not when he sent it to you, the form itself, which may have been pulled from a desk drawer after sitting for 30 years), may be out of date. Statutes change regularly, and any form that's over a year old should be examined to see if it needs to be updated.

[4ever love]

Originally Posted by yourself

The caveat is general - any form that's over a year old (the form, not when he sent it to you, the form itself, which may have been pulled from a desk drawer after sitting for 30 years), may be out of date. Statutes change regularly, and any form that's over a year old should be examined to see if it needs to be updated.

Most always located in the bottom left corner should be a form number then usually in parentheses the latest revision date.