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Law Guardians Just What Do They Do and Why? Their Role & the Rules that Govern Them
Law Guardians are a very misunderstood breed, especially by law guardians themselves, and even sometimes by judges, not to mention other lawyers and litigants. Too many believe that a law guardian's role is well defined, yet each seems to conduct him or herself according to his or her own desire. Some maintain that he or she selects who gets custody of the children and what visitation the other parent receives. Some Judges believe the law guardian is his or her investigator and fact finder to hang a decision on. Both are wrong. A law guardian is nothing more and nothing less than an attorney for the child who is appointed by the court; is an equal to all other lawyers appearing in the case; subject to the same rules of conduct and ethics; and must actively represent his or her client, the child.
Law guardians are a creation of statute. FCA 241 clearly states that "[t]his act declares that minors who are the subject of family court proceedings or appeals in proceedings originating in the family court should be represented by counsel of their own choosing or by law guardians." This means that a child may retain any attorney of his or her own choosing, without requirement of that attorney being on the law guardian panel. Of course, the court may appoint a law guardian as well. A parent may refer his or her child to an attorney, but cannot retain the attorney or the child, nor be involved in the representation of the child. Anybody, including a parent, can pay the bill for the child.
A child of sufficient age and maturity may fire a court appointed law guardian. A child of sufficient age and maturity has, for example, been found to be a bright and mature 15 year old. A child may also request the court to appoint him or her a new law guardian when the child's opinions differ or conflict with the opinions of the law guardian's.
A law guardian is subject to the same rules of conflict as any other lawyer in any other representation. He or she must disclose any actual or potential conflict. Then, absent consent of all of the parties, he or she cannot represent the child.
A law guardian is the attorney for the child, and must take an active role in the proceedings. The law guardian's role is to advocate for his or her client to the court, as would any other attorney for any other client. A law guardian is but one attorney equal to the other attorneys, and bound by the same rules. Thus, a law guardian may not have communication with any party represented by an attorney, outside the presence of the attorney and without the permission of the attorney for that party. In that role as attorney for the child, as opposed to the role of an attorney for one of the parties, the law guardian has a dual role pursuant to statute. He or she must both represent the wishes of the child, and advocate for the child's best interests. "Because the result desired by the child and the result that is in the child's best interest may diverge, Law Guardians sometimes face a conflict in such advocacy ... It is helpful to a resolution of that conflict to note that the child's preference is just one factor the trial court will consider."
The biggest concern seems to be that law guardians and judges too often discuss cases outside of the presence of the attorneys for the litigants, and/or the litigants themselves, either verbally or in writing. It appears to be falsely believed, by both law guardians and judges, that ex-parte communication by a law guardian is permissible, but it is not. Should a judge request either a written report from the law guardian or to discuss the case with him ex-parte, the judge can be subject to a judicial grievance and admonishment: "A law guardian is not a member of the judge's staff, but independent legal counsel for the child. It follows that a judge should not have private communications with a law guardian to which the parties and their attorneys are not privy." A law guardian cannot be made to report to a judge in any greater manner than any other attorney for either party. A law guardian is bound by the Code of Professional Responsibilities' prohibitions and restrictions as are all other attorneys involved in the same case, or any other case.
Too often law guardians seek to either give the court a written report, or put his or her report on the record. At times, judges request a report from the law guardian. This too is impermissible. A law guardian is but an attorney in the case, of equal standing to the lawyers for each of the parties. As such, he or she has only a right to attempt to persuade the court to his or her opinion.
A law guardian may make his or her beliefs on the case known to the court orally in the presence of the parties and their attorneys, or in writing, by way of, inter alia, briefs and summations with service to the other attorneys or parties, he or she may not do so by way of a report which contains facts not in evidence nor a part of the official record. A law guardian has every right to participate in a proceeding as does an attorney for one of the parties, but no greater right.
It is amazing how many lawyers can easily predict how a law guardian will advocate on any given case, despite the facts of the case. Yet, a law guardian is not supposed to have any predisposition prior to the gathering of evidence.
Too often law guardians seek to do home studies, and interview the parties and collateral sources, to produce what appears to be a probation investigation. This too is not permissible. A law guardian is not an investigative arm of the arm of the court.
Too often law guardians believe he or she determines who gets custody, and too often judges rely too heavily on the law guardian. If a custody determination is based on the law guardian's report or recommendation, it is judicial error, as the law guardian is but one of the attorneys in the case, the attorney for the child. The court must also be very careful of that which a law guardian presents to the court as fact, which is but the result of an ex-parte investigation by the law guardian , without any of the collateral sources being in court subject to cross-examination, and it is therefore nothing more than heresay.
A law guardian is only law guardian for a child during the course of the proceeding. Once relieved or a final order is issued, representation ends, as does the court's power to appoint a law guardian. The only two exceptions are when a Notice of Appeal is filed by one of the parties or when the matter involves neglect or abuse. So, why are there law guardians from cases which did not involve abuse or neglect, and no Notice of Appeal was filed, continue to have contact with the child and or one or both parents? Some of these law guardians even continue to bill the panel or the litigants. Would that not be a fraudulent voucher or billing warranting suspension from the practice of law? Law guardians beware! Although a parent lacks standing to sue a law guardian for malpractice, a parent may still assert the law guardian's malpractice as defense to paying the law guardian's fees.
Thus, contrary to the belief of many law guardians and judges, a law guardian is but another attorney in the case, and equal with all other lawyers. The law guardian must follow all rules and laws. The law guardian is not an arm of the court. Nor does he answer to a judge in anyway beyond that which any other lawyer must. The law guardian does not determine custody. He must advice the court of the child's preferences and desires, and then whether or not he or she believes it to be in the child's best interest or not, and why.
The role of law guardians, now referred to as the attorney for the child, has since been codified in the Court Rules, 22 NYCRR 7.2. It is reflective of what is found in this article. It was enacted after the findings of the Matrimonial Commission, which were similar to the content of this article, written before the commission's report, and before the enactment of 22 NYCRR 7.2.
In conclusion, if the rules were more closely followed, a law guardian's representation would be greatly improved, and more independent. If a law guardian feels that he or she is answering to a judge more than any other lawyer in the case, then obviously, he or she is not truly representing children zealously. However, not all children need a law guardian. More often, they need a mental health professional, who will help them to better cope, make the life transition, and express their feelings, free of influence real or perceived. Maybe, the utilization of in-camera interviews very early in a case, with intermittent follow ups, would better give a Judge a true image of the inter family dynamics, to better protect the best interests of the children.
New York does not automatically give custody of children to any one parent. In deciding custody, the court only considers what is in the best interest of the child. It considers who gave primary care during the marriage, scheduled doctors' appointments, and attended school meetings. Generally, the court allows the non-custodial parent ample visitation with the child and even awards joint custody. Visitation is often only limited in circumstances where there is abuse.
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