Question: My ex-husband and I have been involved in a bitter custody fight over our 11- year-old daughter. She was five when we divorced; I was awarded custody. He remarried last year and went back to court for modification. The judge appointed a guardian ad litem for our daughter at our first and only hearing. I thought the guardian ad litem seemed to be taking my husband’s side, but my lawyer told me I was imagining things.

Then, right before school was to start back last month, my lawyer called and told me that the judge had signed an order transferring temporary custody of my daughter to my ex- husband based on the guardian’s report that neither of us had seen before. The guardian was critical of my “not spending enough time” with my daughter (even though I work two jobs in order to make ends meet). He also reported to the judge that my daughter was left home alone, which is true for about 45 minutes each afternoon when I am on the way home from work.

My daughter makes A’s and B’s, has had no tardies and only seven absences from school in six years, yet the judge has ordered that she will have to go to another school, away from her friends and familiar surroundings. When I asked my lawyer what could be done, he said that there was no way to appeal a temporary custody order, and that he would ask the judge to appoint a psychologist to evaluate both homes. But I will not be able to afford all of this.

Answer: You are receiving unfair treatment. If you live in one of the 50 states, we believe that your lawyer should take a more direct approach to the problem here.

By entering an order that modifies a prior order based upon ex parte, off-the-record recommendations of a guardian ad litem without you having the opportunity to be heard and to present evidence, the judge violated your due process rights.

In other words, when your guardian ad litem had off-the-record communications with the trial judge, your fundamental principles of due process were violated and the order- changing custody is without effect. There are standards of professional responsibility that prohibit lawyers from engaging in private communications with judges, and the judicial standards of conduct forbid judges from having off-the-record, one-sided communications about a pending case.

Therefore, from both ends of the legal spectrum, what occurred is wrong because the decision of judge must be based on evidence produced in open court. Since the guardian’s recommendation was not presented as evidence in open court, and since you had no opportunity to respond and present your case, there was no evidence before the judge that justified the judge’s order.

Your lawyer has an absolute right to take this order to a higher court where it certainly will be reversed. The judge should then be disqualified from hearing your case because he has prejudged it, and the guardian ad litem should be removed and reprimanded.

SoloFact: Many parents involved in custody cases believe that children’s preferences should be followed, and the judge should privately interview them. While there are a number of rules in a number of states, we believe the better rule is that if one or both parents object to a private interview between a child and judge in a custody case, there should be no such interview.