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Saturday, May 24, 2008

First Department Critical of Law Guardian too!

Law Guardian May Not Be Unsworn Witness and Must Comply with Law Guardian Rules of the Chief Judge

In Naomi C v Russell A, --- N.Y.S.2d ----, 2008 WL 304936 (N.Y.A.D. 1 Dept.) the Appellate Division affirmed without a hearing Court’s dismissal of a petition to modify a custody order. The Appellate Division pointed out that with the parties present, the court asked the Law Guardian, on the record, to discuss the position of the 10-year-old child regarding how well the current custody arrangement was working. Although the court was warranted in dismissing the petition on its face, the questioning of the Law Guardian (now called Attorney for the Child) by the court was " something that should not be repeated". Although the court was correct to disallow the "cross-examination" of the Law Guardian by petitioner's counsel, the court should not consider the hearsay opinion of a child in determining the legal sufficiency of a pleading in the first place. Most importantly, such colloquy makes the Law Guardian an unsworn witness, a position in which no attorney should be placed. It emphasized that the attorney for the child is subject to the ethical requirements applicable to all lawyers, including but not limited to becoming a witness in the litigation. (Citing Rules of the Chief Judge [22 NYCRR] 7.2[b] ).

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