Nobody Knows What "Custody" Law Guardians Can Do

Yesterday we spoke to an attorney who is involved in a contested custody case in New York. He had just received a call advising him that the principal of the child's school had called Administration for Children's Services (ACS) to file a child abuse report because it had noticed that the child had come to school with bruises on his face. This was the third time the school had called ACS this year. The last two complaints were dismissed as "not indicated" after the law Guardian reported to ACS that the child was not injured. The attorney sought advice as to how to handle the matter. He said that the Law Guardian had already interviewed his client and the parent whom the child lived with and had spoken to the other attorney but had not yet contacted him, nor spoken to the children. He said that the Law Guardian apparently intended to conduct an investigation and then would determine what to do.

I was disturbed by the fact that the earlier ACS investigation was halted based upon the Law Guardian's "investigation". If the child was injured at the hands of one of his parents ACS should make it's own investigation. I was also disturbed by the fact that the Law Guardian apparently believed he had the right to communicate directly with the parties in his investigation of the matter.

While the law guardian has a legitimate role in a few custody cases, the role of the Law Guardian is so ill defined, that he or she offers nothing in most cases but additional work and added expense to the parents, who usually can not afford to pay for his fees. This is because most lawyers do not know exactly what is the role of the Law Guardian

Law Guardians are appointed daily by New York courts in contested custody cases in both the Supreme Court and the Family Court. A few years ago Judge Silbermann, the Administrative Judge for Matrimonial Matters adopted Law Guardian Standards, but no one seems to be acknowledging their existence other than the First Department. These Standards for Law Guardians define a law guardian as an attorney representing a child in a custody or visitation proceeding and in any appeals therefrom. “It is the responsibility of the law guardian to act as an advisor to the child, and to advocate for the child's position in the litigation. The law guardian shall assess whether the child is impaired or unimpaired. Impairment is a child's inability to make knowledgeable, voluntary and considered judgments or to work effectively with his/her attorney.” The standards provide that assessment of impairments by the law guardian shall include consideration of the child's age, level of maturity, developmental ability, emotional status, ability to articulate his/her desires, and any other facts that impact upon the child's ability to make knowledgeable, voluntary and considered judgments or to work effectively with his/her attorney. Assessment of a child's impairment may also take into account factors external to the child including a parent's mental illness, substance abuse or domestic violence. The law guardian is required to advise the Court of his/her conclusion of impairment and, if the child expresses a position, report to the Court the child's stated position. Thereafter, the role of the law guardian is to assist the Court in making an informed decision in the best interests of the child by ensuring that relevant evidence is obtained and presented to the Court, including evidence that otherwise might not be presented to the Court, and by fully participating in the adjudicative process. The law guardian is directed by the rules not to assume the role of social worker or mental health professional, but to seek the assistance of such professionals on behalf of the child when appropriate. The standards also provide that a law guardian for a child shall not act as a witness or submit any written reports to the court at any point during the proceedings or in any subsequent proceedings.

Recently, in Rogovin v Rogovin, 27 A.D.3d 233, 812 N.Y.S.2d 41( 1st Dept, 2006) the Appellate Division, First Department found no basis exists to disqualify the Law Guardian, who, having determined that the child was unimpaired in accordance with local standards, properly acted as the child's advocate in urging retention of the custodial status quo, rather than as an aide to the court in determining the child's best interests (citing Family Ct. Act 241; see Matter of Albanese v. Lee, 272 A.D.2d 81, 707 N.Y.S.2d 171 [2000]; Law Guardian Definitions and Standards, State of New York Unified Court System, Statewide Administrative Judge for Matrimonial Matters). It stated that: Argument from the Law Guardian in support of the child's stated preferences is to be expected.

We believe that these Standards define the role of the Law Guardian exceptionally well. Yet, every attorney who we have spoken to about Law Guardians tell us that these Standards are ignored by most law guardians and trial judges every day.

The Appellate Divison, Third Department has been outspoken recently in explaining what a law guardian can not do. In Matter of Graham v Graham, --- N.Y.S.2d ----, 2005 WL 3489247 (N.Y. A.D. 3 Dept.), a custody case, the Appellate Division strenuously voiced its opinion that it was improper for Family Court to direct the child's attorney, the Law Guardian, to file a "report" in this case. Although the Law Guardian was careful to characterize his written submission at the end of the proof as his "summation" and appropriately relied solely on record evidence in support of his position. Family Court, however, not only referred to the "summation" as a "report" but, in lieu of making independent findings, adopted--in its own decision--the Law Guardian's submission in its entirety. The Law Guardian also made "recommendations" in his submission; evidence that he, as well as Family Court, may have misunderstood his role. It stated: " The use by a court of the "recommendation of the Law Guardian" has too long been tolerated in Family Court and matrimonial proceedings. When a court asks the child's attorney to make "a recommendation," it improperly elevates the Law Guardian's position to something more important to the court than the positions of the attorneys for each of the parents. Attorneys
representing parents do not advocate on behalf of their clients by making "reports" and "recommendations." The Law
Guardian should take a position on behalf of the child at the completion of a proceeding--whether orally, on the record, or
in writing --and that position must be supported by evidence in the record."

Earlier the same court expressed its views of the role of the Law Guardian. In Usack v Usack, 2004 WL 3258905 (N.Y.A.D. 3 Dept.), 2005 N.Y. Slip Op. 02712 the Appellate Division specifically emphasized (citing Weiglhofer v. Weiglhofer, 1 AD3d 786, 788 n 1 [2003] ) that it is not proper for a Law Guardian to make a "report" to a court. There the Law Guardian submitted, at Supreme Court's direction, a report containing her own unsworn observations regarding the parties, recounting personal interactions or opinions about them, all of which, it noted, could have been explored and elicited by calling witnesses and upon cross-examination of the parties and other witnesses.

Conclusions

The Law Guardian is the attorney for the child. As the attorney for a person who has a position he should advocate for his clients position in accordance with the Law Guardian Standards. While the definition of the role of the Law Guardian, as the attorney for the child, seems to elude most of the courts and counsel there should be not disagreement upon what the Law Guardian can not do.

The Law Guardian is an attorney. He is an attorney for a person who is not a party to the action. Therefore, he should not have standing to advocate on an issue other than the issue of custody and visitation. He should not be involved in any aspect of the litigation other than custody or visitation. He should not be present for any aspect of the litigation other than custody or visitation aspects and, as the attorney for a person other than a party to the action, he should not communicate with any litigant unless he has the prior consent of their counsel.

The Law Guardian does not have the right to interview either of the parties.

The Law Guardian does not have the right to communicate with either of the parties.

The Law Guardian does not have the right to express a pesonel opinion as to the veracity of either of the parties, or on any other matter, to the court or to forensic experts, who may rely upon that opinion.

The Law Guardian does not have the right to investigate and report to the court.

The Law Guardian does not have the right to make a recommendation.

The Law Guardian does not have the right to express a position with regard to any issue in the the litigation between the parties, other than custody or visitation.

The Law Guardian does not have the right to express a positon on the child support issues between the parties.

The Law Guardian does not have the right to be present during the financial aspects of the trial.

The Law Guardian does not have the right to communicate with the judge or his court personnel or report to the judge during any stage of the proceedings.

Right to Assignment of Counsel in Divorce and Custody Cases

We applaud the New York Legislature for finally recognizing that indigent litigants in custody and visitation cases broght in the Supreme Court should have the same right to the assignment of free counsel as litigants in custody and visitation cases brought in the family court. Judiciary Law 35 has been amended to require Judges in the Supreme Court to assign counsel in such cases. It would appear that the Supreme Court judges are now required to notify defendants of the right to counsel, as well as the right to an adjournment to obtain counsel, and to the right to the appointment of free counsel if they can not afford to retain an attorney. It would also appear that these rights apply, even in divorce cases, where custody or visitation is in issue.