Selected Cases Relating To In
Camera, Child’s Position, and Role of Law Guardian
Requirement of Law Guardian:
“[W]e note
that no Law Guardian was appointed to represent the child. Although failure to
do so under the circumstances of this case does not require reversal (see, Matter of Scalia
v Scalia, 217 AD2d 780, 782 [3d
Involvement of Law Guardian:
“[W]e note
the conspicuous absence of the Law Guardian's recommendation in this case. A Law Guardian was duly appointed and properly
participated in the proceedings and, as a reviewing court,
we should be afforded the benefit of all objective information bearing on this
closely contested case. It follows that efforts should henceforth be made so
that such relevant and important insights find their way into the factual
record for purposes of appellate review.”
Moon v. Moon,
120 A.D.2d 839, 840 (3d
Role of Law Guardian -- failure to
appoint one does not warrant reversal.
Experts --
discretionary whether to order forensic evaluations.
Home study -- discretionary
whether to order one.
In camera -- discretionary whether
to hold one, particularly for young children (ages 3 and 5):
“In view of the strong evidence
supporting the award of custody to petitioner, Family Court's failure to
appoint a Law Guardian for the children does not warrant a reversal (see, Richard D. v Wendy P., 47 NY2d 943, 944; Matter of Church v Church, 238 AD2d 677, 678; Matter of Scalia
v Scalia, 217 AD2d 780, 782; Lee v Halayko, 187 AD2d 1001, 1002).
However, we must emphasize the contributions competent Law Guardians routinely
make in contested matters; they not only protect the interests of the children
they represent, they can be valuable resources to the trial court (see, Matter of Church v Church, supra).
”Next, we reject respondent's contention that Family Court erred by not
ordering a forensic evaluation or home studies. A trial court's decision with respect to the
need for a forensic mental health evaluation is discretionary (see, Family Ct Act § 251; Matter of Smith v Kalman, 235 AD2d 848, 849), as is its decision with
respect to whether to order home studies (see, Lee v Halayko, supra, at 1002; Matter of Jennie EE., 187 AD2d 877, 879, lv denied 81 NY2d 706). Here, neither party requested
these reports and nothing in the record provides a basis for concluding that
the court should have ordered them sua sponte.
”We also reject respondent's contention that Family Court erred in failing to
interview the children. The decision with respect to the need for such an
interview also lies within the trial court's discretion (see, Matter of
Requirement of Law Guardian: “There is no requirement that the court
invariably appoint a Law Guardian for the child in every case where parents who
are [944/45] unmarried, divorced or separated, seek a judicial determination of
child custody and there is no indication that the child's interests were
prejudiced in any way.” Richard D. v. Wendy P.,
47 N.Y.2d 943, 944-45 (1979).
Role of Law Guardian; taking position
contrary to client; client 11 years old with
limitations:
“As they are directed solely to
the Law Guardian's representation, petitioner's arguments require us to
consider the proper role of a Law Guardian in a custody proceeding. While
conceding that a Law Guardian would be justified in substituting his or her own
judgment of what is in the best interest of a very young child, petitioner
contends that where, as here, the represented child is old enough to articulate
his or her wishes, the Law Guardian is required to advocate for the result desired
by the child and prohibited from interjecting an independent view of what would
best meet the child's needs. We cannot agree with such a categorical position
and, instead, affirm Family Court based on the circumstances of this case.
”The Family Court Act "establishes a system of law guardians for minors
who often require the assistance of counsel to help protect their interests and
to help them express their [754/55] wishes to the court" (
”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 (see, Eschbach v Eschbach, 56 NY2d 167, 173).
"While not determinative, the child's expressed preference is some
indication of what is in the child's best interests. Of
course, in weighing this factor, the court must consider the age and maturity
of the child and the potential for influence having been exerted on the
child" (id., at 173).
Depending on the circumstances, "a Law Guardian may properly attempt to
persuade the court to adopt a position which, in the Law Guardian's independent
judgment, would best promote the child's interest, even if that position is
contrary to the wishes of the child" (Matter of Amkia P., 179 Misc
2d 387, 390; see, Matter of Dewey S., 175 AD2d 920, 921).
”Here, the Law Guardian took an active role by introducing evidence,
presenting a witness, cross-examining all other witnesses, participating
in the Lincoln hearing and submitting a closing argument (see, Matter of Burr v Emmett, 249 AD2d 614, 616).
Also, despite the Law Guardian's advocacy that custody be
awarded to respondent, the consistent strong preference of the parties' child
to live with his mother was acknowledged by the Law Guardian and repeatedly
communicated to Family Court. In evaluating the Law Guardian's advocacy of a
disposition at odds with the child's preference, we note that the child had his
11th birthday during the course of the hearing. Significantly, petitioner
testified that the child suffers from several neurological disorders including Tourettes Syndrome, Obsessive-Compulsive Disorder and
Attention Deficit Hyperactivity Disorder. The "neutral" psychologist
appointed [755/56] by Family Court opined that the child was certainly
intelligent but somewhat less mature than average and could be easily
manipulated by adults. The record further indicates that the child may be
blinded by his love for petitioner, that she exerts influence on his thoughts
concerning custody, and that he did not articulate objective reasons for
his preference other than his dislike of discipline at respondent's home and
the lack of rules and discipline at petitioner's home (see, Matter of Amkia
P., supra,
at 388). Under these circumstances, we find that the Law Guardian
did not act improperly by advocating a position that he believed to be in his
client's best interest.
Carbailleira
v. Shumway, 273
A.D.2d 753, 754-56 (3d
Role of Law
Guardian. Law Guardian reports disapproved. The Law Guardian is the attorney for the
child and not an investigative arm of the court.
“Because it appears that Supreme
Court ordered and relied on a "report" from the Law Guardian, we take
this opportunity to emphasize that a law guardian is the attorney for the
children (see Matter
of Carballeira v Shumway, 273 A.D.2d 753, 754-755 [3d Dep’t 2000],
lv denied 95 N.Y.2d 764 [2000]) and not an
investigative arm of the court. While law guardians, as advocates, may make
their positions known to the court orally or in writing (by way of, among other
methods, briefs or summations), presenting reports containing facts which are
not part of the record or making submissions directly to the court ex parte are inappropriate practices (see Matter of Rueckert
v Reilly,
282 A.D.2d 608, 609 [2d Dep’t 2001]; Reed v Reed, 189 Misc. 2d 734, 737 [Fam. Ct.
Richmond Co. 2001]; New York State Bar Assn. Committee on
Children and the Law, Law Guardian Representation Standards, vol. II, standard
B-6, at 30-31 [Nov. 1999]; see also Molier v Molier, 46 N.Y.2d 718 [1978],
modfg 53 A.D.2d 996
[3d Dep’t 1976]; Family Ct Act §§ 241, 242).
Consequently, courts should not direct law guardians to make such
reports.”
Weiglhofer v. Weiglhofer, 1 A.D.3d 786, 788 fn. (3d
Role of Law
Guardian. Note use of term “recommendation.”
Petitioner’s interference with
respondent’s relationship with child supported award to respondent. Recommendation of the Law Guardian and the
reports of two psychologists supported same result. Matter of Tyrone G., 4 A.D.3d 205 (1st
Role of Law
Guardian. Stipulation of settlement in divorce case
provides for prior consultation between the parties on matters concerning the
children and for submission of parental disputes over such matters to the law
guardian; stipulation
did not detract from plaintiff’s authority as sole custodian. Lewittes
v. Lewittes, 2 A.D.3d 295 (1st
Input from child. Child’s preference is not dispositive. Martin V.
v. Karen Beth G., 305 A.D.2d 305 (1st
In camera.
In camera not requested in Family
Court, error not preserved for appellate review.
Discretion of
Family Court whether to hold in camera.
Award of custody to parent over
grandparents upheld; grandparents failed to make threshold showing of
extraordinary circumstances. Matter
of Rudy v. Mazzetti, 5 A.D.3d 777, 774 N.Y.S.2d
171 (2d
Law Guardians -- private payment. “We note that the
practice of directing parents to pay a law guardian's fees in custody matters
appears to be more prevalent in the Supreme Court, where the court similarly
has the option of directing compensation from public funds pursuant to Judiciary Law § 35.
This court, as well as the Appellate Divisions, First and Third Departments,
have upheld the practice of requiring parties to pay law guardian fees in
custody proceedings initiated in the Supreme Court (see e.g. Rupp- Elmasri
v Elmasri, 8 A.D.3d 464 [2d Dep’t 2004]; Pascarelli v Pascarelli,
283 A.D.2d
472 [2d Dep’t 2001]; Stephens v Stephens, 249 A.D.2d 191 [1st
Dep’t 1998]; Gadomski v Gadomski, 245 A.D.2d 579 [3d
Dep’t 1997]; Bronstein v
Bronstein, 203
A.D.2d 703 [3d Dep’t 1994]). We perceive no basis for creating a
disparity between the Family Court and the Supreme Court in custody matters by
holding that only the Supreme Court is permitted to depart from the public
payment scheme for assigned law guardians. Indeed, we have previously held that
in [89/90] matters of custody, the Family Court has the same powers
possessed by the Supreme Court, which includes the authority to award counsel
fees (see Matter of O'Neil
v O'Neil, 193
A.D.2d 16 [2d Dep’t 1993]). Since the Supreme Court and the
Family Court share concurrent jurisdiction over custody proceedings, both
courts should have the ability to direct parents to pay law guardian fees in
appropriate circumstances.” Moreover,
Family Court had authority to order payment of Law Guardian fees in excess of
statutory rates. Plovnick v. Klinger, 10 A.D.3d 84, 89 (2d
Weight of Law Guardian’s recommendation:
“Recommendations of persons such
as the court-appointed psychologist and law guardian are not determinative of
the ultimate issue in controversy but are factors to be considered, unless
unsupported by the record (see Young v Young, 212 A.D.2d 114, 118, 628 N.Y.S.2d 957).” Custody properly awarded to respondent; Court
did not err in failing to conduct in camera interviews of children. Picot v. Barrett, 8 A.D.3d 288, 289
(2d
In camera. Custody properly awarded to respondent; Court
did not err in failing to conduct in camera interviews of children. Picot v. Barrett, 8 A.D.3d 288, 289
(2d
Input of child. Denial of visitation reversed for failure to
ascertain preference of 15 year old.
Preference of a 15-year-old is entitled to great weight. Kocowicz
v. Kocowicz, 306 A.D.2d 285 (2d
Role of Law
Guardian. Law Guardian reports disapproved. The Law Guardian is the attorney for the
child and not an investigative arm of the court. “Because it appears that Supreme Court
ordered and relied on a "report" from the Law Guardian, we take this
opportunity to emphasize that a law guardian is the attorney for the children
[citations omitted] and not an investigative arm of the court. While law
guardians, as advocates, may make their positions known to the court orally or
in writing (by way of, among other methods, briefs or summations), presenting
reports containing facts which are not part of the record or making submissions
directly to the court ex parte are inappropriate
[citations omitted]. Consequently, courts should not direct law guardians to
make such reports.” Weiglhofer
v. Weiglhofer, 1 A.D.3d 786, 788 fn. (3d
Court improperly directed Law
Guardian ex parte “report” and testimony:
“[T]he court improperly directed
the Law Guardian to prepare and file a "law guardian report" with the
court ex parte, inasmuch as a law guardian "is
the attorney for the children ... and not an investigative arm of the
court" (Weiglhofer v Weiglhofer, 1 A.D.3d 786, 788 n 1, 766 N.Y.S2d
727; see Matter
of Rueckert v Reilly, 282 A.D.2d 608, 609, 723 N.Y.S.2d
232). Indeed, a law guardian should not submit any pretrial
report to the court or engage in any ex parte
communication with the court (see NY State Bar Assn. Comm. on Children
and the Law, Law Guardian Representation Standards, Vol. II, Standards B-6, B-7
[Nov. 1999]). Moreover, the court improperly directed the Law Guardian to
testify as a witness. The Law Guardian's testimony on behalf of petitioner in
this case appears to have been in direct contravention of Code of Professional
Responsibility DR 5-102 (c) (22
NYCRR 1200.21 [c]), which provides that "if, after
undertaking employment in contemplated or pending litigation, a lawyer learns
or it is obvious that the lawyer ought to be called as a witness on a significant
issue on behalf of the client, the lawyer shall not serve as an advocate on
issues of fact before the tribunal ..." “Cobb v. Cobb, 4
A.D.2d 747, 747-48 (4th Dep’t 2004)
Relocation denied. “Although the recommendation of the Law
Guardian is important, it is not determinative (see Matter of Perry v Perry, 194 A.D.2d 837, 838).” Wright
v. Derrick, -- A.D.3d -- (4th Dep’t
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