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Roger
Roger, Attorney
Category: Family Law
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ESQ. Adams can you provide me with any annotated statutes pertaining

Resolved Question:

ESQ. Adams can you provide me with any annotated statutes pertaining to superintendent rule 48 (F)(f) dealing with G.A.L, im confused about the nature of the report, if it is oral then it cant be admitted as an exhibit correct, so how can it be considered as a report if it cannot be apart of the record, also if the report can be oral how then does the rule apply,were each party has to be served a copy no later then seven days, that would be impossible correct?
Submitted: 1 year ago.
Category: Family Law
Expert:  Wendy-Mod replied 1 year ago.
Hi, I am a moderator for this topic. I sent ESQ. Adams a message to follow up with you here, when he is back online. If I can help further, please let me know. Thank you for your continued patience.

Regards,
Wendy
Expert:  Roger replied 1 year ago.
Hi - sorry I didn't see your question sooner.

I'm having trouble looking up the rule you're referring to. Can you check the rule and make sure the name? Thanks.
Customer: replied 1 year ago.

RULES OF SUPERINTENDENCE FOR THE COURTS OF OHIO

Rule 48. Guardians ad litem (F)(f)

Expert:  Roger replied 1 year ago.
Ok. SOrry for the delay.

Here are all of the annotations under Rule 48:

Notes To Decisions
Conflict Minimum standards not met No conflict of interest No reversible error Report Rights under rule Standing to file motions

Conflict

Trial court committed reversible error by failing to appoint a guardian ad litem to represent the best interests of the children because there was the strong possibility of a conflict between the interests of the children and the interests of the mother, which required the trial court to appoint a guardian ad litem to investigate and report on the best interests of the children; in a dependency case, where the record demonstrates the "strong possibility" of a conflict between the interest of the child and the parent, the juvenile court is required by R.C. 2151.281 and Juv.R. 4(B)(2) to appoint a guardian ad litem to represent the child. In re A.K., -- Ohio App. 3d --, 2012 Ohio 4430, -- N.E. 2d --, 2012 Ohio App. LEXIS 3891 (Sept. 28, 2012).

Trial court committed reversible error by failing to appoint a guardian ad litem to represent the best interests of the children because a guardian ad litem was necessary to protect the fundamental fairness of the legal custody hearing, and the trial court had no evidence before it of the children's wishes since it did not interview any of them in camera, and there was no guardian ad litem to speak on the children's behalf as required under R.C. 2151.414(D)(1)(b); although R.C. 2151.281 does not mandate that a guardian ad litem be appointed to represent the children in other contested permanency proceedings, the same principles of due process and fairness would appear to apply to contested legal custody hearings. In re A.K., -- Ohio App. 3d --, 2012 Ohio 4430, -- N.E. 2d --, 2012 Ohio App. LEXIS 3891 (Sept. 28, 2012).

Record did not reflect that, regarding the father's motion to terminate shared parenting, either the father or the guardian ad litem reported to the trial court an alleged conflict between the children's best interests and the children's wishes. Also, because Ohio Superintendence Ct. R. 48 was a general guideline that did not have the force of statutory law, the father did not have any substantive right to enforce it. Rice v. Rice, -- Ohio App. 3d --, 2011 Ohio 3099, -- N.E. 2d --, 2011 Ohio App. LEXIS 2622 (June 23, 2011).

Minimum standards not met

Testimony and report of a guardian ad litem (GAL) should have been stricken from the record as the GAL's investigation fell below the minimum standards established in Sup.R. 48, in that the GAL did not interview the mother's boyfriend with whom the child would be living, did not visit either parent's residence, and did not meet with the child in a one-on-one setting. Nolan v. Nolan, -- Ohio App. 3d --, 2012 Ohio 3736, -- N.E. 2d --, 2012 Ohio App. LEXIS 3296 (Aug. 14, 2012).

No conflict of interest

Court rejected a mother's contention that the guardian ad litem (GAL) in a permanent custody proceeding had a conflict of interest on the basis that the GAL served on a group's board and that employees of that group testified at trial. The evidence showed that the GAL had disclosed her board membership to counsel months prior to trial, that she was unaware that the group's employees would be testifying until she saw them on the first day of trial, that she held no responsibility for the group's provision of services, and that she had never spoken to either employee about the case. In re P.G., -- Ohio App. 3d --, 2012 Ohio 469, -- N.E. 2d --, 2012 Ohio App. LEXIS 417 (Feb. 9, 2012).

No reversible error

Because the guardian ad litem was not an attorney to a party in the custody modification proceeding, he was not permitted to submit a closing argument. However, any error in failing to strike the closing argument was harmlessbecause there was no evidence demonstrating that the trial court relied on the guardian ad litem's closing argument. D.W. v. T.R., -- Ohio App. 3d --, 2012 Ohio 614, -- N.E. 2d --, 2012 Ohio App. LEXIS 536 (Feb. 17, 2012).
There was no error in refusing to remove the child's attorney because, although she was also the guardian ad litem and there was a conflict in that the attorney recommended the boarding school and the child wanted to live with his mother, the record supported the belief that the child lacked maturity, initially liked the boarding school, and that he liked his teachers and school activities. Berger v. Lu-Jean Feng, -- Ohio App. 3d --, 2012 Ohio 1041, -- N.E. 2d --, 2012 Ohio App. LEXIS 931 (Mar. 15, 2012).

That a guardian ad litem (GAL) was absent during portions of hearings and failed to question several witnesses was not an irregularity within the meaning of Civ.R. 59(1) entitling the father to a new trial; as the husband failed to object when the trial court dismissed the GAL because her participation was unnecessary, he waived this claim. Pettit v. Pettit, -- Ohio App. 3d --, 2012 Ohio 1801, -- N.E. 2d --, 2012 Ohio App. LEXIS 1569 (Apr. 23, 2012).
As a magistrate is not bound by a guardian ad litem's (GAL's) recommendation, the magistrate was not required to adopt the more current of the GAL's two reports. Pettit v. Pettit, -- Ohio App. 3d --, 2012 Ohio 1801, -- N.E. 2d --, 2012 Ohio App. LEXIS 1569 (Apr. 23, 2012).

While a trial court erred by permitting a non-attorney guardian ad litem to cross-examine witnesses, which was prohibited by Sup.R. 48, the failure to comply with Sup.R. 48 was not grounds for reversal as Sup.R. 48 was a general guideline that did not have the force of statutory law and did not given an appellant any substantive right to enforce it. In re R.S., -- Ohio App. 3d --, 2012 Ohio 2016, -- N.E. 2d --, 2012 Ohio App. LEXIS 1759 (Apr. 30, 2012).
Any error by the trial court in failing to admit the guardian ad litme's report, which had not been filed within the time limitations of Sup.R. 48, as an exhibit, sua sponte, was not prejudicial as it was part of the trial court's record by virtue of its filing and did become part of the trial court's consideration upon review of the record. The guardian ad litem was able to testify that her recommendation was for legal custody to the mother, which was presumably what the mother wanted to emphasize. Seymour v. Hampton, -- Ohio App. 3d --, 2012 Ohio 5053, -- N.E. 2d --, 2012 Ohio App. LEXIS 4422 (Oct. 16, 2012).

Parent's argument that a trial court abused its discretion in granting any significant weight to the opinion of a guardian ad litem (GAL) in a child custody matter, when the GAL failed to meet with individuals whom the parent identified as the GAL was required to do under Sup.R. 48(D)(13)(d), lacked merit because the trial court's opinion did not indicate that it placed significant weight upon the GAL's opinion; but rather, that the trial court considered the GAL's opinion in combination with all the evidence presented at the hearing. Heilman v. Heilman, -- Ohio App. 3d --, 2012 Ohio 5133, -- N.E. 2d --, 2012 Ohio App. LEXIS 4484 (Nov. 5, 2012).

In a case where children were found to be neglected and dependent, even though a magistrate failed to require a guardian ad litem to file a final report with written recommendations prior to the dispositional hearing pursuant to Ohio Superintendence Ct. R. 48(F), a violation of such rule was not a ground for reversal. Rule 48 was a general guideline that did not have the force of statutory law, and an appellant did not have any substantive right to enforce it. In re B.K., -- Ohio App. 3d --, 2011 Ohio 4470, -- N.E. 2d --, 2011 Ohio App. LEXIS 3715 (Sept. 6, 2011).

Report

Mother failed to point to any portion of the judgment entry that demonstrated that the trial judge erroneously relied on the testimony or the report of the guardian ad litem. Nor did she point to any particular finding that was unreasonable or otherwise unsupported by the evidence because of improper reliance on the testimony of the guardian ad litem; thus, she did not establish prejudice. In re M.Z., -- Ohio App. 3d --, 2012 Ohio 3194, -- N.E. 2d --, 2012 Ohio App. LEXIS 2817 (July 16, 2012).

Magistrate did not commit plain error when it admitted the guardian ad litem's (GAL's) report into evidence at the permanent custody hearing because both parents were provided with a full and fair opportunity to cross-examine the GAL regarding her observations and findings at the permanent custody hearing, reliance on the GAL's report was minimal, and the GAL had read the reports of her predecessor and testified that the father was doing remarkably well. In re C.B., -- Ohio App. 3d --, 2012 Ohio 2691, -- N.E. 2d --, 2012 Ohio App. LEXIS 2371 (June 18, 2012).

Trial court was entitled to proceed with a hearing because the guardian ad litem filed a report six days before the hearing on the matter, but no party objected to the report being one day late. In addition, although the guardian ad litem's report was captioned as the initial report, it was in fact the only report filed by the guardian ad litem, and the fact that it was captioned "initial" did not affect the content of the report. In re R.K., -- Ohio App. 3d --, 2012 Ohio 2739, -- N.E. 2d --, 2012 Ohio App. LEXIS 2394 (June 14, 2012).

Guardian ad litem was not "testifying" during the permanent custody hearing, but, instead, was orally supplementing her final report, which was permitted pursuant to Sup.R. 48(F)(1)(d) and not a violation of the oath requirement under Evid.R. 603. In re S.H., -- Ohio App. 3d --, 2012 Ohio 4064, -- N.E. 2d --, 2012 Ohio App. LEXIS 3572 (Sept. 6, 2012).
Given the numerous reports, including the report filed immediately prior to the hearing, the mother could not show any prejudice due to the format of the guardian ad litem's (GAL) report which was filed after the hearing. The report sufficiently met the requirements for a GAL report; although the report was written by counsel, it was the report of the GAL through her representation. In re A.D., -- Ohio App. 3d --, 2011 Ohio 5979, -- N.E. 2d --, 2011 Ohio App. LEXIS 4872 (Nov. 18, 2011).

Rights under rule

In a proceeding for legal custody of a mother's child, while the trial court adopted the magistrate's decision without reviewing the guardian ad litem's written report, in contravention of Ohio Superintendence Ct. R. 48(F)(1)(c), this did not require reversal as this rule did not give rise to substantive rights. In re K.V., -- Ohio App. 3d --, 2012 Ohio 190, -- N.E. 2d --, 2012 Ohio App. LEXIS 151 (Jan. 20, 2012).

Standing to file motions

Juvenile court erred in failing to hold a hearing on the motion to suppress because the guardian ad litem (GAL) did have standing to file the motion and it was properly served and, although the motion was not timely, the GAL alleged facts warranting that the motion could only be decided after a presentation of evidence. Based on the purposes and goals underlying the juvenile court system, justice required that the motion to suppress be resolved on its merits. In re A.E., -- Ohio App. 3d --, 2011 Ohio 4746, -- N.E. 2d --, 2011 Ohio App. LEXIS 3925 (Sept. 14, 2011).
Expert:  Roger replied 1 year ago.
According to subsection (F)(1)(f), the report must be in writing and made available to the parties, and it also says the judge must be given a copy of the report at the hearing/trial.

Thus, an oral report isn't acceptable alone - - the GAL can testify about the content of the report, but the report must be in writing and filed with the court.
Customer: replied 1 year ago.
but if thats not done this would be harmless unless he was not cross-examined or made available to be cross-examined then would that be a violation of due process
Expert:  Roger replied 1 year ago.
The law requires a report to be filed, regardless of whether either parent challenges it. If no one objects or challenges the report, then it will be accepted as is. However, the report must be filed.

Customer: replied 1 year ago.
ok if there is never a report filed in two years,are this a matter of due process, or what substantiates due process is being cross examined? second you mentioned the requiring a report to be written, however; this case states: In a case where children were found to be neglected and dependent, even though a magistrate failed to require a guardian ad litem to file a final report with written recommendations prior to the dispositional hearing pursuant to Ohio Superintendence Ct. R. 48(F), a violation of such rule was not a ground for reversal. Rule 48 was a general guideline that did not have the force of statutory law, and an appellant did not have any substantive right to enforce it. In re B.K., -- Ohio App. 3d --, 2011 Ohio 4470, -- N.E. 2d --, 2011 Ohio App. LEXIS 3715 (Sept. 6, 2011). is this because it is harmless error, but if the G.A.L was not cross-examined then it would be reversible error, and if both error's occurred it would compound the substantive error is that correct?
Expert:  Roger replied 1 year ago.
A report is required to be filed before a hearing. If there hasn't been a hearing, then there may not have been a need for a report - - I can't say for sure as I don't know what the court file requires, or wither there was an order for a report to be filed, etc.

The case mentions a final report - - so some report was apparently filed; also, the case speaks to written recommendations not being made, and not that the entire written report wasn't filed.

I think that's the difference.
Customer: replied 1 year ago.
ok i did read the rule mentioning portion of the report can be entered, however if there is no report entered as an exhibit this would bar the court from considering the report at all according to that rule correct? but if a court considered a oral report and there was never a written one admitted nor the parties given a copy would this be a denial of due process?
Expert:  Roger replied 1 year ago.
Yes, that's my understanding/interpretation of the rule. Yes, I would think this should be a violation of procedure and due process.
Customer: replied 1 year ago.
How can we check to know if that is a correct understanding because somtimes the court will say its harmless error. Because if you make a clsim and its not worded right it eould be throe n out for failure to state a valid. Cause of action
Expert:  Roger replied 1 year ago.
I think it's correct because the rules says that the GAL shall provide a report - - not "may" file or "can" file. That means that this is an absolute requirement - - not an option.

Thus, I don't see any other way to interpret the rule, and none of the annotations provide exceptions that would apply here.

Customer: replied 1 year ago.
what is your understanding of this case law : Record did not reflect that, regarding the father's motion to terminate shared parenting, either the father or the guardian ad litem reported to the trial court an alleged conflict between the children's best interests and the children's wishes. Also, because Ohio Superintendence Ct. R. 48 was a general guideline that did not have the force of statutory law, the father did not have any substantive right to enforce it. Rice v. Rice, -- Ohio App. 3d --, 2011 Ohio 3099, -- N.E. 2d --, 2011 Ohio App. LEXIS 2622 (June 23, 2011. Itstates that the superintendent rule is a guideline but doesn't have force because its not a statute
Expert:  Roger replied 1 year ago.
The rule is a procedural rule, which means these are rules are what governs court proceedings. A substantive right is a liberty or right that one has. Thus, the rule isn't a substantive right because it's an issue of procedure.

What the case is saying is that there's no legal right or legal cause of action of a parent as a result of the GAL's failure to address a conflict of interest. However, the rule still requires the report to be written and filed.
Customer: replied 1 year ago.
ok, however, aren't the rules of procedure akin to protect substantive rights,such as the G.A.L being cross-examined to protect the due process rights of the parties involved example superintended rule 48 (F)(2):A copy of the final report shall be provided to the court at the hearing. The court shall consider the recommendation of the guardian ad litem in determining the best interest of the child only when the report or a portion of the report has been admitted as an exhibit. This would be due to protect the rights of due process, is that correct?



Expert:  Roger replied 1 year ago.
If a report is not filed, then the GAL should not be allowed to testify, but if the GAL were allowed to testify without a report, that would be an abuse of due process because of the procedural requirement that a written report be provided in order to allow review by the parties and the judge.

The case above refers to an issue not being raised about a conflict of interest, which isn't something contemplated by the rule.
Customer: replied 1 year ago.
OK, conflict of interest has nothing to do with the rules of procedure got you, what defines testify, is it when your sworn in and your cross-examined or is it orally giving a report without being questioned by either party or magistrate asking parties if they would like to question the G.A.L
Expert:  Roger replied 1 year ago.
Testimony is when a person is sworn in by the court clerk, judge or other court officer and takes an oath to tell the truth to the court. Any statements made under oath is testimony.

Being cross examined isn't required - testimony is made after one takes the oath.
Customer: replied 1 year ago.
OK so if a court says we have taken into consideration the G.A.L report and his supplemental report, does that mean there is a written report, but on investigating there is no report filed nor was he cross-examined, would this be abuse of procedure or a violation of due process
Expert:  Roger replied 1 year ago.
That means there should be a written report.

If there is no report, it should be an violation of the rule and also a violation of due process because the parties' right to review and cross examine the GAL about the content of the alleged report have been taken away.
Customer: replied 1 year ago.
violation of the rule would this be abuse of procedure, i know that term is not used allot and again if there was no report filed, but; it was said on record the report was taken into consideration and the supplemental report and there is no record filed with the clerk upon receiving certified copies would this be fraud upon the court, by the way legally what is a supplemental report?
Expert:  Roger replied 1 year ago.
Fraud involves a calculated intention to mislead or deceive, and thats a difficult standard to prove. It's more likely that this is negligence - - not fraud.

The annotations above state that a GAL can supplement a report orally at trial, but there still must be a written report filed.
Customer: replied 1 year ago.
OK, but what raises a question how can the magistrate say thy have taken the report into consideration if there was never a report entered into the record,to take it into consideration one would have to read it or at least see it correct?
Expert:  Roger replied 1 year ago.
I understand the confusion there, and the only way I know to address this is to file a motion for clarification and state in the motion that no report is in the file as required by the rule, and ask the court to clarify what report is being referred to in the order and just bring the matter before the court.

If the judge doesn't follow what the rule requires, then the next step would be to appeal the decision.
Customer: replied 1 year ago.
but for the most part that would be an issue of concern wouldn't you agree also negligence for an officer of the court is no excuse for they are deemed to know the law when the law requires them to act in a particular manner and they do the opposite when the negligence deprives someone of a substantive right , this would equal gross negligence which at any rate would equate to fraud: Lata culpa dolo aequiparatur. Gross negligence is equal to fraud.Manga negligentia culpa est, magna culpa dolus est. Gross negligence is a fault, gross fault is a fraud. Dig 50, 16, 226.Bouvier's 1856 Law Dictionary. would you agree with this
Expert:  Roger replied 1 year ago.
Gross negligence and fraud aren't the same thing. Fraud requires proof of a conscious wrongdoing/intent, but gross negligence does not.
Customer: replied 1 year ago.
gross negligence is not fraud but it is equal to fraud according to bouvier's law dictionary, if the actions were not done that the officers claimed to have done according to law which was not and that misrepresentation was used in determining the outcome? this couldn't be fraud? the proof im assuming would come from the evidence which was offered only orally, but it did not exist, the fact that once this oral evidence was entered without a report and took into consideration makes the G.A.L mandatory to be cross-examined which is the duty of the court to make him available, the court can not make a ruling on a non factual allegation for the law arises out of facts, correct? but if there is nor record to support the G.A.L statement or exhibits either there is a record of proving these allegations or there isn't that would mean some one is not being truthful correct?
Expert:  Roger replied 1 year ago.
Fraud and negligence/gross negligence aren't the same under the law.

Sure, you can allege fraud, but proving it is a whole other thing. All the judge, a court officer or the GAL must say is that he/she/they made a mistake, that this case was mistook for some other case and that the order is generic and wasn't changed, that someone fell asleep at the wheel and made an error, etc. If that happens, fraud is practically wiped away because intent can't be established. Instead, it was just a mistake - - maybe a bad mistake or a bonehead move, but it wouldn't be fraud.

My point is simply that fraud is very hard to prove.
Customer: replied 1 year ago.
i understand point taken, i want to give another example tell what you think, YOU ARE BEFORE THE COURT, the other party cliams something was took or anything and that they have written reports from the eight district police headquarters the judge rules in favor of other party because of this report you on the other hand go and retrieve said reports that entailed what took place but they do not exist, you on the other hand already knew they didnt exist but had no idea of what they were taliking about. would this not be fraud?
Customer: replied 1 year ago.
what do you gather from this maxim: Manga negligentia culpa est, magna culpa dolus est. Gross negligence is a fault, gross fault is a fraud. Dig 50, 16, 226.Bouvier's 1856 Law Dictionary. if gross negligence is not equal to fraud
Expert:  Roger replied 1 year ago.
It all depends on being able to prove intent. This could be fraud if that can be shown. If not, it would simply be negligence.

The above definitions are old English common law - it's not US case law.
Customer: replied 1 year ago.
but doesn't it also rely on if the person who is affected has been deprived of a right or something. example fraud may consist of both active misrepresentation and passive silence vela v. marywood 17 s.w. 3d 750, a misrepresentation is a misstatement of fact, central of georgia ry. co. v. goodwin 120 ga. 83, if this misrepresentation if accepted, leads the mind to an apprehension of a condition other and different from that which exist, haigh v. white way laundry co., 164 iowa 143,it is also understood to mean a statement made to deceive or mislead.
Customer: replied 1 year ago.
also wouldn't common law maxims govern constitutional provisions
Expert:  Roger replied 1 year ago.
Sure - but the claimant must PROVE fraud was committed with evidence/documentation/statements or testimony, etc. it's not enough to just claim it or have a belief that one was defrauded - if must be proven with evidence - not insinuated.

You can file a claim for fraud - all I am saying is that it's hard to sustain it.
Expert:  Roger replied 1 year ago.
Common law is established by case law, not a legal dictionary.

Case law in the US is that fraud and gross negligence aren't the same for the reasons discussed earlier.
Customer: replied 1 year ago.
i understand , what is hard to digest is that if i knew what i said was not true and i said a thing to support my case i believe anyone would say i lied, especially if i am one whom what i say would be taken for face value and on good faith and no one would check behind me, this is true when one has a duty to bring the facts or speak the truth, but if i do not bring the facts, that's one thing that is negligence when it requires a certain action or method of doing a thing, but if i alter the facts that's is misrepresentation which is fraud, especially when it is your duty to only bring the facts and speak the truth, that's my understanding of that maxim
Customer: replied 1 year ago.
this case law is what i based that maxim on "A lack of good faith is the equivalent of bad faith, and bad faith, although not susceptible of concrete definition, embraces more than bad judgment or negligence. It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another." Hoskins v. Aetna Life Ins. Co.,XXXXX 3d 272 - Ohio: Supreme Court 1983
Expert:  Roger replied 1 year ago.
I'm not saying you don't have a case for fraud as I have no clue about the details of the case. I'm looking at this from an objective point if view. All I'm saying is that it's hard to prove fraud.

Testimony is first-hand evidence, but the problem is that it's going to be contradicted by evidence from the other side. So, in order to break the "tie", extrinsic evidence must be presented to prove the fraud.

As for the case, you can be acting in good faith and still be negligent or even grossly negligent. But, you can't act in good faith and bad faith at the same time.
Customer: replied 1 year ago.
as far as the case law it states a lack of good faith is the equivalent of bad faith, like the maxim:Gross negligence is equal to fraud, not that it is fraud but tantamount. the issue before me is is they stated a fact but i have the evidence that shows that it a lie, my question how could the court not know its a lie, when the people in their clerk office shake their head and say we dont have this in our record we dont know what your talking about . and everyone i show the facts, they say they must just don't like you even lawyers! one lawyer said their doing that because your prose,what does prose have to do whith facts and truth?
Expert:  Roger replied 1 year ago.
The absence of good faith is bad faith, BUT you can act in good faith and still be negligent.

The court not knowing that there's a lie is something I can't opine a out - all I know is that a motion to clarify the order to expose that no report was filed is the way I would address it if I were the lawyer in the case.

As for being pro se, that should not make any difference. But, if you think the judge is taking advantage of the fact that you're being mistreated l, a judicial performance complaint could be filed with the state bar association.
Customer: replied 1 year ago.
i know what your saying you can act in good faith and make a mistake which is negligent, but to act in bad faith "embraces more than bad judgment or negligence. It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud." The only way one can be proven to have acted with a lack of good faith is if his actions is coupled with a duty that IF OMITTED would be gross negligence, like some one deliberetly allowing a child to stick a fork in a socket that would be more than negligence, as for officers who's duty is for the people at large there would be no excuse ,another question, how can you request a magistrate to be recused can it be done during a hearing by requesting and presenting an affidavit with the facts alleged
Expert:  Roger replied 1 year ago.
You would have to file a motion with the court asking the judge to recuse him/herself based on some impropriety or prejudice.
Customer: replied 1 year ago.
could it be made during a hearing or can i file it and then mention it during the hearing. as for what i previously wrote im not challenging you but i need to through it at you so you can correct me if my thinking is incorrect and i appreciate it
Customer: replied 1 year ago.
another thing i forgot i came across this in another case law were it explained when which rules will apply example when the civil rule will apply or when the statute will apply can give insight on that.
Expert:  Roger replied 1 year ago.
The judge likely won't hear or discuss the issue until you file the motion. You can file you're ruin anytime, however.

I understand where you're coming from, and I don't want you to think that I'm saying you can't do this - I'm just saying its a big task.
Customer: replied 1 year ago.
the last thing i wrote did that make sense? i know what your saying about proving fraud first thing they will say is you cant prove he intentionally did that with malicious intent lol. in my notes ive read that one has to file an affidavit and send it to the supreme court or is this only for a judge not a magistrate
Expert:  Roger replied 1 year ago.
Both the rules and statutes apply to a case. Rules apply to procedure and statutes apply to the application of the law to the facts of the case (case law does the same thing).

As for the affidavit, i don't know about that.
Customer: replied 1 year ago.
when you say application of the law ok example this is took from from ohio civil rule of procedure: RULE 44.1. Judicial Notice of Certain Law; Determination of Foreign Law
(A) Judicial notice of certain law.
(1) Judicial notice shall be taken of the rules of the supreme court of this state and of
the decisional, constitutional, and public statutory law of this state. However; we find almost the same wording in the O.R.C 2941.12 Pleading a statute or right derived therefrom.
In pleading a statute or right derived therefrom it is sufficient to refer to the statute by its title, or in any other manner which identifies the statute. The court must thereupon take judicial notice of such statute.

Effective Date: 10-01-1953
so the statute is telling us that the court shall take notice if the pleader mentions it by title or any other method to describe the statute
Expert:  Roger replied 1 year ago.
We're way, way off task from where this question started, and I don't want to confuse or jump from issue to issue - especially when I haven't reviewed the laws/rules.

That said - judicial notice is basically the judge recognizing long standing legal principles.
Customer: replied 1 year ago.
i know im trying to understand when does statute take over from civil rule like this we have already reviewed superintended supreme court rule of ohio for G.A.L Rule 48. Guardians ad litem (F)(f),HOWEVER; the O.R.C, add's another word to it as an investigator,3109.04 Allocating parental rights and responsibilities for care of children - shared parenting:
"Prior to trial, the court may cause an investigation to be made as to the character, family relations, past conduct, earning ability, and financial worth of each parent and may order the parents and their minor children to submit to medical, psychological, and psychiatric examinations. The report of the investigation and examinations shall be made available to either parent or the parent's counsel of record not less than five days before trial, upon written request. The report shall be signed by the investigator, and the investigator shall be subject to cross-examination by either parent concerning the contents of the report. The court may tax as costs all or any part of the expenses for each investigation." Here it says the report shall be made available to either parent not less than five days before trial, upon written request, so is the application here if the party doesn't write a request they would be robed of knowing what he has written and has forfeited there right of due process, is that correct, if so that raises another question how would you know to request if your not made aware their is a report to request?
Expert:  Roger replied 1 year ago.
Never - to my knowledge.

Rules regulate procedure and statutory law/case law is applied to the facts.

Yes, the report must be made available within the timeframe. It's up to the parties the check and see if the document has been filed. If not, the issue is raised at the hearing by the parties.
Customer: replied 1 year ago.
so the statute stipulates that one has to check according to that language so if one says according to rule 48 (F) that the G.A.L did not give a copy to each party the answer could be the party is to request for the report according to statute 3109.04 (C), but as it relates to rule 48 (F)(2) The court shall consider the recommendation of the guardian ad litem in determining the best interest of the child only when the report or a portion of the report has been admitted as an exhibit. This part the statute doesnt comment about this would cover due process of parties involved by him being cross-examined, would that be correct
Expert:  Roger replied 1 year ago.
Yes, I agree.

If there's no filed report, the judge can't review it.
Customer: replied 1 year ago.
now what would that be called abuse of procedure and just to make sure i understand you correctly you agree that with the statute 3109.04 (C)in relation rule 48 (F) it could be said if one's gripe is they weren't given a copy of the report the answer could be they have to request in writing pursuant to statute 3109.04(C). is that correct
Expert:  Roger replied 1 year ago.
Failing to file the report would be a violation of the rule and also a violation of due process if the GAL attempted to testify about a report that hasn't been filed.

I don't know that the request has to be in writing. I think the parties are entitled to a copy upon oral or written request to the clerk.
Customer: replied 1 year ago.
what if he gave a report but he never was sworn in and he was never put on the witness list in transcript but he said i have written reports from other parties however on checking these reports they don't exist and the magistrate in their conclusion stated that they took the G.A.L report and found it has been a change of circumstance would the fact of him saying he had written reports and his opinion was to reallocate parental rights based on that would that amount to a testimony?
Expert:  Roger replied 1 year ago.
If the person wasn't sworn in, then the statements would not be considered testimony.
Customer: replied 1 year ago.
i know that's the correct way but in the transcripts it stated i have took into consideration the report of G.A.L, and supplemental report and find that their has been a change of circumstance, which the G.A.L during the trial stated that he had written reports from other parties and gave his opinion for reallocation. upon discovery these written reports didn't exist nor was any report entered into the record by the G.A.L, this was discovered on retrieving certified reports of G.A.L from clerks office, so question if he wasn't sworn in how could his report be considered second if there was no report entered into the record,third if those parties have no record of written report of what he was talking about. how would you address that?
Expert:  Roger replied 1 year ago.
I think I would address it just like you just wrote it - - that the GAL provided no testimony and that there's no report from which to provide testimony - that would be part of the motion to clarify the court's order.
Customer: replied 1 year ago.
when i entered a motion pursuant to rule 60 b 5 to dismiss a judgment due to this and other things when i went to court he just overruled it but never mentioned my motion in his journal entry that one was entered or not and the evidence that was submitted to support it as if it never existed.
Expert:  Roger replied 1 year ago.
That may be something you want to address on appeal. Hopefully, the transcript of record will help you establish what you attempted to present.
Customer: replied 1 year ago.
do you think my argument has standing
Expert:  Roger replied 1 year ago.
Yes, you have a legitimate claim.
Customer: replied 1 year ago.
hi ESQ. Adams another question has arisen with substantive due process rights that have been violated by governmental agencies can a complaint be given to the attorney general, or do you believe its a waste of time
Expert:  Roger replied 1 year ago.
I suppose that's possible, but it's not going to result in a damage award to you.

Instead, the way to address a court's failure to rule under the law is via an appeal to the appeals court.
Customer: replied 1 year ago.
ESQ. Adams funny thing happen to me i was informed that you cant object during a proceeding and that you can not make an offer of proof to appeal. is there any time during a proceeding that you cant object to a false statement, really need to hear this one
Expert:  Roger replied 1 year ago.
I have never heard of that - period.

A party has a right to make an objection at any time. The objection may be overruled, but you have the right make it.
Customer: replied 1 year ago.
OH MY GOOOOOD! THANK YOU BROTHER! what are these people doing
Expert:  Roger replied 1 year ago.
I can't say, but it sounds like they may be jerking you around a little because you don't have a lawyer.
Customer: replied 1 year ago.
is that a violation of due process the right to be heard and defend oneself
Expert:  Roger replied 1 year ago.

I think so. Due process is the legal requirement that the state must respect all of the legal rights that are owed to a person, and I certainly think one has the right to object at a hearing/trial.

As a side note, we've been back and forth about 40 times on this post. I certainly don't mind continuing with you, but please remember to rate/accept my response so I get credit for my time. Otherwise, I don't get paid for all of the time I've spent with you.

Again, I'm glad to continue with you, but I would ask that you do me this favor as well.

Roger, Attorney
Category: Family Law
Satisfied Customers: 27079
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
Roger and 10 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.
sure thing ill do it right i really appreciate you
Expert:  Roger replied 1 year ago.
I really appreciate you understanding! Let me know if you have any other questions.
Customer: replied 1 year ago.
another question when a complaint is filed with the clerks office the clerk is to issue a summons correct and the movant is to service the party by certified or express mail also besides the clerk issuing summons for service, the movant can service them through post office or service them through clerks office by writ of preacipe informing how to service them. is this correct
Expert:  Roger replied 1 year ago.

Hi -

Usually, when a COMPLAINT is filed, the clerk issues the summons/es and then the party can serve the papers by certified/express mail or via a process server. Here's a link to the Ohio rule regarding service of process: http://www.serve-now.com/resources/process-serving-laws/ohio#certifiedexp

Customer: replied 1 year ago.
ok when the movant serves the other party does he have to do it through the clerks office or he can serve them via usps certified mail.
Expert:  Roger replied 1 year ago.
The clerk must issue the summons, but the person should be allowed to mail the document on his/her own.
Customer: replied 1 year ago.
if you served other party and the mail returned to you once you show the clerk at that time you can service by publication correct?
Expert:  Roger replied 1 year ago.
Look at rule 4.4 at the above link.

I believe it says you can only serve someone by publication if you can't find them after diligent search and inquiry. Thus, I don't think publication can be used except in that circumstance.
Customer: replied 1 year ago.
OK here the main thing i want to through at you i need to make sure im making the right claim as far as the appeal go if one was not aloud to enter evidence and literally told you cant object be quit case dismissed, i know the appellet court deals with matters from a abuse of discretion and denovo stand point but what are violations of due process considered abuse of discretion?
Expert:  Roger replied 1 year ago.
It's likely that the standard of review for a due process claim is an abuse of discretion. I have NEVER personally had an appeal on this issue, so my response is based on reading a few articles on this.
Customer: replied 1 year ago.
thank you ESQ. adams
Expert:  Roger replied 1 year ago.
No problem.
Customer: replied 1 year ago.
in relation with filing a complaint for violation of due process perjury would this be a title 42 section 1983 suit in federal court and would i still be able to sue for damages or is that not correct because state courts wouldn't deal with these issues would they
Expert:  Roger replied 1 year ago.
A suit under 1983 would have to be filed in federal court since it's a federal law.

Customer: replied 1 year ago.
do you think that would be good
Expert:  Roger replied 1 year ago.
It's certainly an option, but I can't say whether or not it is the way to go. You've got a very complicated set of facts, and you'd be well served to sit down and discuss your options with a local lawyer. This will let you be able to make the best decision on how to proceed
Customer: replied 1 year ago.
ok
Expert:  Roger replied 1 year ago.
I think if you have someone review your documents, you can get a better handle on what you've got, what you can prove and what to do.
Roger, Attorney
Category: Family Law
Satisfied Customers: 27079
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