Law Guardian Practice in Custody and Visitation Proceedings
Carol Sherman and Barbara H. Dildine
EXCERPTS (role of Law Guardian; in camera interviews)
Few cases come before the court that are as emotionally and bitterly contested as that of custody of a child. These cases are often complex and involve multiple issues¾
issues that are psychological and social as well as legal and economic.
The dissolution of a family results in disruption of a child’s family relationships and creates a sense of insecurity. Children caught in a custody/visitation battle between parents and other relatives often feel sadness, guilt, powerlessness and anger. These feelings can have a deleterious impact on a child’s development. As the subject of the dispute, the child has fundamental and long term interests in the decision before the court. The child has an interest not only in the outcome of the proceeding but in the process as well. The bitterness of the dispute, the pace of the litigation, the information presented to the court and the ability of the child to be heard are all of enormous importance to a child involved in a custody/visitation case. Therefore, the law guardian must be a strong advocate for the child and participate fully and vigorously in the proceeding.
Unfortunately, custody litigation often increases the hostilities between the parties, adds to the child’s anxiety and distress, is extremely costly and stretches over long periods of time. It is unfortunately common for one or both parties to disparage the other in front of the child or to be careless or indiscreet about criticizing or even vilifying the other party under circumstances in which the child can overhear. Parties often have angry, screaming disputes in front of their children. Hostility may also be more subtle and orchestrated by exposure to attitudes, opinions or covert manipulation designed to alienate the child from the other party or otherwise engender negative impressions or feelings of betrayal by the other party.
Not surprisingly, statements made in open court by parties can be extremely disputatious, if not incendiary. Many such litigants are fixated upon perceived wrongs done to them by the opposing party or other issues that resonate personally but do not focus upon the legal issues at stake. In their role as zealous advocates, counsel for litigants in custody/visitation proceedings make statements that reflect the partisan perspective of their clients. Accusations and finger-pointing against the other party are typical of colloquy between opposing counsel in custody/visitation cases. The parties’ hostility toward each other may overshadow their concern for the child’s interests.
The law guardian, whose sole interest is that of the child, can be effective in focusing the parties on the needs of the child and assisting them in recognizing and dealing with their own anger and sense of betrayal without involving or influencing the child. Giving a child an effective voice in a custody/visitation proceeding requires comprehensive and often multi-disciplinary representation by a lawyer and social worker who have specialized training in meeting the legal needs of children. Children are not miniature adults. They are in the process of developing psychologically, cognitively, emotionally and behaviorally. Counsel for the child must be knowledgeable and skillful in interviewing the child, gathering and assessing the information and evidence necessary to provide effective representation and developing a comprehensive position and plan. The law guardian can work with the parties in acknowledging the child’s wishes and feelings as independent of their own and thus allow and even encourage the child’s relationship with the other parent.
In addition, allegations of child abuse, neglect or maltreatment as well as domestic violence are sometimes made in custody/visitation cases and genuine and sometimes urgent child protective and domestic violence issues are often prevalent, particularly in Family Court. Judges must respond swiftly to allegations of domestic violence and ensure that all child protective allegations are investigated and that necessary action is taken to protect children and victims of domestic violence, while at the same time observing the procedural and substantive rights of litigants. The law guardian can be effective in investigating the allegations and presenting the court with vital information and safe and effective alternatives if parental contact is appropriate.
Despite the best efforts of the judiciary, custody/visitation proceedings, particularly in Family Court, are frequently protracted. Hotly contested trials continue over long periods of time. This exacerbates the anxiety of the subject children and contributes to feelings that their lives are unsettled and unpredictable. The Law Guardian endeavors to ensure that the child is insulated from such parental strife and may alert or exhort the court to take certain action to ameliorate this situation.
The law guardian can work with the parties in developing an acceptable plan for custody and visitation. The law guardian can inform the parties of and refer them to appropriate services such as community counseling and mental health programs. Successful resolution of custody cases prior to litigation is not only of great benefit to the child and the parties, but also is of assistance to the court. In addition, the law guardian can monitor interim and final orders and intervene to resolve problems that may arise. Thus, the law guardian may be able to anticipate or recognize incipient conflicts and resolve them without court intervention.
II. Appointment of Law Guardian in Custody/Visitation Proceedings
Appointment of a Law Guardian, the preferred practice in
most contested custody cases, is vital to provide independent representation
for children, and the Law Guardian is expected to participate vigorously in
every aspect of the proceedings in order to advance the wishes and interests of
the children. Pursuant to F.C.A. §242,
a Law Guardian is “an attorney admitted to practice law in the state of
While appointment of a Law Guardian in contested custody
proceedings is not mandatory, it is the preferred practice. See F.C.A. §249(a); Matter of Farnham v. Farnham, 252
A.D.2d 677, 675 N.Y.S.2d 244, 246 (3rd
role of the Law Guardian in
American Bar Association adopted the first national Standards of Practice for Lawyers Representing Children in Custody cases, which was drafted over a ten-year period by the Family Law Section (hereinafter, “ABA Standards”). As the Appellate Division, Second Department interpreted the role of the Law Guardian in the seminal case of Koppenhoefer v. Koppenhoefer, 159 A.D.2d 113, 558 N.Y.S.2d 596, 599-600 (2nd Dept. 1990), “[t]he attorney may act as champion of the child’s best interests, as advocate for the child’s preferences, as investigator seeking the truth on controverted issues, or may serve to recommend alternatives for the court’s consideration” (citations omitted).
Law Guardians are typically appointed at the outset of the proceedings and, in cases where parties have at least initially waived their right to counsel, may be the only attorney involved in the case for a substantial portion of the proceedings, if not its entirety. Since the Law Guardian is appointed by the court to represent the child, a parent cannot “waive” or decline the appointment of a Law Guardian for his or her children. McWhirter v. McWhirter, 129 A.D.2d 1007, 514 N.Y.S.2d 301, 303 (4th Dept. 1987) (in a proceeding to modify a prior order of visitation, petitioner’s waiver of the appointment of a Law Guardian was rejected on the ground that the Law Guardian protects the child’s rights and is “not for the benefit of either party”); Blank v. Blank, 124 A.D.2d 1010, 509 N.Y.S.2d 217, 218 (4th Dept. 1986) (parties could not mutually agree to waive representation of their children by a Law Guardian).
Law Guardian “must take an active role” in custody proceedings. Carballeira
v. Shumway, 273 A.D.2d 753, 710 N.Y.S.2d 149, 152
Law Guardian’s recommendation, while not determinative of the ultimate issue in
controversy, has been solidly established as a factor to be considered in
awarding custody or visitation. Bruce
B.B. v. Debra C.C., 307 A.D.2d 408, 761 N.Y.S.2d 733 (3rd
statutory function of the Law Guardian is to give minors who are the subject of
contested custody and visitation proceedings independent representation. Stien v. Stien, 130 Misc. 2d 609, 496 N.Y.S.2d
902, 906-07 (Fam. Ct.
The Law Guardian is “appointed to protect the rights
of children, not for the benefit of the parents.” Blank v. Blank, 124 A.D.2d 1010, 509
N.Y.S.2d 217, 218; see also Zirkind
v. Zirkind, 218 A.D.2d 745, 630 N.Y.S.2d 570, 571
has, in some respects, a heavier burden of responsibility to the client and to the court than does the lawyer representing an adult. In these cases, the Law Guardian must protect the child against both parents, and has a duty to resist either of them, or their counsel, if the youthful client’s interests seem to require it.
the Law Guardian must be impartial at the outset of custody and visitation
proceedings, after interviewing the child and conducting an investigation, the
Law Guardian must represent the “wishes” and “interests” of her client. F.C.A. §241.
Therefore, the Law Guardian often takes a position in accord with one
party and not the other. In the absence
of any of the grounds justifying
disqualification of a lawyer in other types of cases (e.g., prior
representation of or a relationship with one of the parties), the Law
Guardian’s reasoned recommendations do not constitute bias or a basis for his
or her removal.
III. Distinction Between “Law Guardian” and “Guardian ad Litem”
The distinction between a Law Guardian representing a child and a guardian ad litem assigned on behalf of a child, which is often blurred or misunderstood, should be clarified. Unfortunately, the case law sometimes fails to distinguish between the two roles, even though they are substantially different, as are the qualifications for the position. See, e.g., Bradt v. White, 190 Misc. 2d 526, 740 N.Y.S.2d 777 (Sup. Ct. Greene County 2002) (father brought suit alleging harassment, annoyance, defamation and intimidation against the Law Guardian who represented his child in a custody dispute; court noted that “[t]he line is not always easily drawn” between an attorney for the child who articulates the client’s wishes, and a guardian ad litem, who serves primarily as “an aid to the court in determining the best interests of the child,” citing Bluntt v. O’Connor, 291 A.D.2d 106, 737 N.Y.S.2d 471 (4th Dept. 2002) (parent has no standing either individually or on behalf of child to sue Law Guardian for malpractice alleged to have occurred during Law Guardian’s representation of daughter in visitation proceeding). This has led to misinterpretation of the role of the Law Guardian and confusion about whether certain practices fall within acceptable boundaries of a Law Guardian’s advocacy.
A Law Guardian is an attorney who represents a child. The Law Guardian has a confidential relationship with a child client and acts as an advocate to pursue the lawful objectives of the child, including preferences about custody and visitation. As a lawyer, the Law Guardian participates in every aspect of the proceedings, gathers evidence, makes and responds to appropriate motions, presents witnesses and other evidence at hearings, cross-examines witnesses, participates in negotiations and other out-of-court discussions, submits summations and conducts any and all lawyerly activities in connection with a case. Like any other attorney, the Law Guardian may not testify and is not subject to cross-examination.
A guardian ad litem
for a child, appointed under CPLR Art. 12 (particularly Section 1201 & Rule
1202), need not be an attorney. Indeed,
some courts prefer to appoint mental health professionals. The guardian ad litem
stands in loco parentis and “is
considered an officer of the court.” L.
Elrod, Raising the Bar for Lawyers Who Represent Children:
The NYSBA Standards apply only to “Law Guardians,” meaning “counsel for the child.” (NYSBA Standards, Introduction, p. 2). The ABA Custody Standards eliminate use of the term guardian ad litem for lawyers representing children in custody cases. The abolition of this term means “that a person who serves essentially as a witness through testimony in court or by making a report on facts not otherwise in evidence is not serving as an attorney, and thus is not covered under these Standards.” Elrod, p. 117.
The Appellate Division, First Department expressed a keen understanding of the difference between the roles of guardian ad litem and Law Guardian in Albanese v. Lee, 272 A.D.2d 81, 707 N.Y.S.2d 171 (1st Dept. 2000). In that case, the father had filed a petition seeking visitation and the mother moved to have the New York Society for the Prevention of Cruelty to Children (“SPCC”) removed as guardian ad litem for her children and to appoint a Law Guardian instead. The Appellate Division noted that one of the children, who was fifteen years old, had “repeatedly expressed her opposition to visitation and her displeasure with the representation of the SPCC, which she believes is biased towards her father. . . .” 707 N.Y.S.2d at 172. Further, the Appellate Division noted, SPCC described its role as “being a neutral, rather than the children’s advocate, and there is confusion as to which role it was intended to play.” In reversing the Family Court’s denial of the mother’s motion, the Appellate Division declared that a Law Guardian should have been assigned to ensure that “the children’s interests were protected and their wishes adequately expressed in court.” See also Frizzell, 576 N.Y.S.2d at 440, in which the Third Department reversed and remanded for a new hearing where court had proceeded to conduct a custody trial in the absence of the appointed law guardian, noting “nor did the posthearing appointment of another attorney as ‘guardian ad litem’ allow him to take an active role in ensuring the rights of the children.”
IV. Removal of the Law Guardian
A law guardian may not be
disqualified from representing his/her client based on a claim of bias because
the law guardian has taken positions which are in
Adopting the same reasoning as Stien v. Stien, in Eli
v. Eli, NYLJ,
In a highly contested custody litigation, the law guardian will often take a position in accord with a particular party. However, that does not mean that the position taken is not in the child’s interest. As the court stated in Stien v. Stien, 496 N.Y.S.2d at 906,
“[i]n these cases the Law Guardian must protect the child against both parents, and has a duty to resist either of them, or their counsel, if the youthful client’s interests seem to require it. Either parent, or both, may try to persuade the court, pro se or through counsel, that he or she only has the child’s best interests in mind. Either parent, or both, may – and often does – see the child responding badly to the pulling and hauling of a custody battle and place the blame on the other, exonerating him or herself. The bitterer the contention, the greater the need for counsel loyal only to the child, beholden to neither parent, exercising independent judgment, not answerable to either party for her manner of representation.”
The law guardian is beholden to neither party and is not answerable to either party for the manner of her representation or her advocacy. Nor is the law guardian bound by the position of either party or the forensic evaluator. It is the role of the judge, not that of the law guardian or the forensic evaluator, to determine the ultimate question of custody or visitation. The law guardian would be of little assistance to his/her clients or the court if she merely echoed the recommendation of the evaluator. As the court declared in Stien v. Stien, 496 N.Y.S.2d at 907:
It is, in the end, the judge who makes the decision, based on the record. The judge may use all, part or none of the law guardian’s recommendations. The better informed those recommendations are, of course, the more useful they will be. But the law guardian has all of a lawyer’s autonomy. She cannot be required to satisfy standards of performance laid down for her by either counsel in the case, whose motives are dictated by the obligation to represent another party, with his or her own interests, which may or may not coincide with the interests of the child (citations omitted).
Thus the law guardian may be
disqualified only for such reasons as would disqualify any attorney. These include a total breakdown of
communication and trust between the law guardian and the child client,
incompetent or ineffective assistance of counsel, a conflict based on prior
representation of either party or a related party, retention of the law
guardian by a party, evidence that the law guardian has or will profit
personally in a related civil action, or the necessity that the law guardian testify
as a witness. In Matter of Elianne M., 196 A.D.2d 439, 601 N.Y.S.2d 481 (1st
* * *
In Lincoln v. Lincoln, 24 N.Y.2d 270, 299 N.Y.S.2d 842, 843 (1969), the Court of Appeals approved the conducting of in camera interviews of children in custody proceedings over the parent’s objection that such procedure would allow the court to rely upon “secret evidence.” Acknowledging that the children’s interests in custody proceedings were “paramount” and that “[t]he rights of the parents, must, in the case of conflict, yield to that superior demand,” the court observed:
It requires no great knowledge of child psychology to recognize that a child, already suffering from the trauma of a broken home, should not be placed in the position of having its relationship with either parent further jeopardized by having to publicly relate its difficulties with them or be required to openly choose between them.
299 N.Y.S.2d at 843. Realizing that children in this position required reassurance that their confidences would be respected, the Court of Appeals sanctioned the practice of conducting in camera interviews in the absence of the parties’ counsel.
A stenographic record of the in camera interview of a child in a custody/visitation proceeding must be made. N.Y. Civ. Prac. R. 4019 (a); F.C.A. §664(a). The transcript of an in camera interview should be sealed and made available only to the Appellate Division. (Commentary, Standard C-5; Ladd v. Bellavia, 151 A.D.2d 1015, 542 N.Y.S.2d 81, 82 (4th Dept. 1989)). Since the interview is confidential, the judge should not divulge information about what was said to the parties.
In camera testimony of children in custody
cases is not mandatory, but rather discretionary. Farnham, 675
N.Y.S.2d at 246. In camera
interviews were not meant to be ordered as a matter of course in every case,
particularly where the child is represented by a zealous Law Guardian. McGrath v. Collins, 202 A.D.2d 719,
608 N.Y.S.2d 556, 558 (3d
As the NYSBA Standards recognize, “even in camera testimony may be traumatic to the young client.” (Commentary, Standard B-3). Therefore there are some circumstances in which an in camera interview may not be advisable. For example:
· The child may be too young to offer much information or articulate his or her feelings;
· The child may be subjected to emotional stress and pressure from each or both parents and therefore be further traumatized by the interview process;
· The child may be opposed or reluctant to being questioned in any manner about the issues;
· The child has proven vulnerable to inappropriate influence by one or both parties and the information conveyed would be thereby tainted;
Thus the court must be cognizant of these issues before ordering an in camera interview.
At the same time, an in camera interview provides the court with an opportunity to meet and speak with the child directly and to make an independent assessment of the child’s needs and wishes. By assuring the child of the confidentiality of the interview, the court can encourage the child to express his or her true wishes and concerns and can engage the child in a discussion relevant to the issues. A sensitive and perceptive judge can also use the interview to assist the child in understanding the legal process and its impact on him/her. Although the law guardian meets frequently with the child and convey pertinent information and his/her wishes to the court, the legal process and its effect on the family create anxiety and uncertainty for the child. For some children, the in camera interview gives him/her a sense of empowerment and may alleviate the child’s feelings of helplessness as decisions are made. For most children, the in camera interview can be a positive experience and is often important to the court’s decision making process.
 The New York State Bar Association’s Committee on Children and the Law published the Law Guardian Representation Standards, Vol. II, Custody Cases in November 1999.