ISSUES RELATIVE TO THE APPOINTMENT, PERFORMANCE AND PAYMENT OF

LAW GUARDIANS

IN MATRIMONIAL ACTIONS and FAMILY COURT PROCEEDINGS

by

Jo Ann Douglas, Esq.

The initial statutory authority for the appointment of Law Guardians is found in the Family Court Act at 241 et seq. It is provided therein that the court can appoint a law guardian for children who are the subject of various proceedings. Specifically, the Family Court Act 241 finds that "counsel is often indispensable to a practical realization of due process of law and may be helpful in making reasoned determinations of fact and proper orders of disposition."

The Family Court Act 242 further clarifies that a " 'law guardian' refers to an attorney admitted to practice law in the state of New York and designated under this part to represent minors pursuant to section two hundred forty-nine of this act."

For purposes of child custody proceedings, the relevant portion of FCA 249 is:

"...In any other proceeding in which the court has jurisdiction, the court may appoint a law guardian to represent the child when, in the opinion of the family court judge, such representation will serve the purposes of this act, if independent legal counsel is not available to the child. The family court on its own motion may make such an appointment."

The Matrimonial Rules have also codified the authority to appoint a lawyer to represent the children who are the subject of custody proceedings within the context of divorces. At subsection (f) (3) of the rules, 202.16, the authority is clear: "At the close of the [preliminary] conference...The court may appoint a law guardian for the infant children..." The possibility of the parties submitting possible names is also provided in this section. Additionally, the Rules of the Appellate Division, 22 NYCRR 614.1, include guardians appointed pursuant to CPLR 1201 within the scope of attorneys to whom the rules apply.

This being said, it should be undisputed that the children have a right to counsel, and that the court has a right to appoint counsel for them. However, the issues that arise on the appointment of counsel, including who is appointed, how the person is selected, what the role is, how it is to be performed, and how the law guardian gets paid, are often the tip of the proverbial iceberg.

It is clear from both the Family Court Act and the Matrimonial Rules that the appointment of a law guardian in a custody proceeding is discretionary, and not mandatory. However, once a law guardian is appointed, it is error to proceed to trial in her absence. See Frizell v. Frizell, 177 AD2d 825 (3d Dept. 1991). See also, Pascarelli v. Pascarelli, 283 A.D.2d 472; 724 N.Y.S.2d 636 (2d Dept. 2001), affirming the decision to appoint a law guardian "to assist the court" in visitation proceedings even though custody was no longer an issue. At trial, it is not only permissible, but mandatory that a law guardian offer evidence, examine witnesses, and participate fully. Borkowski v. Borkowski, 90 Misc.2d 57, 396 N.Y.S.2d 962 (Sup. Ct., Steuben Co., 1977). Further, a law guardian who does not take an active role may be discharged in favor of another appointment. Van Gorder v. Van Gorder, 188 AD 2d 1049 (4th Dept. 1992). Law guardians are expected to be treated as any other counsel in a matrimonial action, and to be served with all papers and heard on all relevant issues. Eli v. Eli, NYLJ November 12, 1998, page 25, Supreme Court, Suffolk County. In Dwyer v. De La Torre, 252 AD2d 695 (3rd Dept. 1998), the Court held that conducting an in camera with the child, based upon the child's letter to the Court, in the absence of the law guardian though without her objection, was in appropriate. The Court reversed the order modifying the parties' previous stipulation.

A recent Third Department case, which held that the failure to appoint a law guardian was within the discretion of the trial judge, is most noteworthy because of the dissent by Justice Spain. In Cole v. Reynolds, 8 AD3d 703 (3rd Dept. 2004), although agreeing with the majority opinion relative to the merits of affirming the lower court's decision, the dissent preferred reversing on the sole and critical ground that there was no law guardian. Finding that the allegations in the matter rose to the level of neglect, which would require the appointment of a law guardian if brought under Article 10, the dissent suggested that:

... the court should have appointed a Law Guardian at the very beginning of this proceeding, sua sponte, without prompting from either parent and its failure to do so has deprived this child of the opportunity to have her own advocate to conduct an investigation, examine the witnesses produced by the parents and, if necessary, present additional witnesses and other evidence to assure that all issues related to her best interests were presented to the court for its consideration.



The dissent noted that the failure of the Respondent to request a law guardian was immaterial, as the trial judge should have appointed one sua sponte. Of particular note was the dissent's comments regarding the trial judge's invoking of Family Court Act 1046 (a) (vi) in allowing hearsay testimony in the form of the child's out-of-court statements, due to the serious nature of the allegations of neglect. (Please see section below relative to hearsay.)

THE ROLE OF THE LAW GUARDIAN

Chief Judge Kaye's Statewide Law Guardian Advisory Committee, with the approval of the Administrative Board of the Courts, offers the following: "The law guardian is the attorney for the child. In juvenile delinquency proceedings, it is the responsibility of the law guardian to vigorously represent the child. In other types of proceedings, it is the responsibility of the law guardian to diligently advocate the child's position in the litigation. In ascertaining that position, the law guardian must consult with and advise the child to the extent and in a manner consistent with the child's capacities. If the child is capable of a knowing, voluntary and considered judgment, the law guardian should be directed by the wishes of the child, even if the law guardian believes that what the child wants is not in the child's best interest. However, when the law guardian is convinced either that the child lacks the capacity for knowing, voluntary, and considered judgment or that following the child's wishes is likely to result in a risk of physical or emotional harm to the child, the law guardian would be justified in taking a position that is contrary to the child's wishes. In these circumstances, the law guardian should report the child's articulated wishes to the court if the child wants the law guardian to do so, notwithstanding the law guardian's position." (emphasis added)

Consistent with this, the First Department has defined the role of the law guardian in matrimonial matters:

Definition

Law Guardian: A law guardian is 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 judgement or to work effectively with his/her attorney.



One of the most oft-cited cases on the role of the law guardian is Koppenhoeffer v. Koppenhoeffer, 159 A.D.2d 113, 117 (2nd Dept. 1990), the Appellate Division, Second Department listed the "tasks" faced by the law guardian by stating:

"[the] attorney may act as a champion of the child's best interest, as advocate for the child's preference, as investigator seeking truth on controverted issues, or may serve to recommend alternatives for the court's consideration."



In fact, the definition adopted by the First Department is not at all inconsistent with that as viewed by the Koppenhoeffer court. Clearly, the advocate role is defined in the new definition. Additionally, as by any other attorney in a case, alternatives may be proposed by the law guardian. While the First Department declines to suggest that the law guardian champion "best interests," it nonetheless permits the law guardian the latitude to assess the client's ability to understand the nature and potential result of the position the client wishes to assert, and inform the court if it appears to be the result of an "impairment."

Standards

Assessment of impairment 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 judgement 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 shall 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 law guardian shall 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 otherwise fully participating in the adjudicative process.



Thus, once determining that a child's preferred position may be harmful to the child, the law guardian does indeed assume the role of "investigator" as in Koppenhoeffer, "ensuring that relevant evidence is obtained and presented to the Court, including evidence that otherwise might not be presented to the Court, and by otherwise fully participating in the adjudicative process."

While a determination of "best interests" is always reserved to the Court, it is indeed within the purview of the law guardian's role to assist the Court in making that determination.

"A law guardian shall advocate for the child's stated position if the law guardian, on his/her own or with the assistance of a mental health professional and after investigation and assessment of the situation, determines that the child is unimpaired."



The law guardian, established as advisor and advocate, may have his role determined by the type of proceeding at hand. For instance, in a child protective proceeding, under Article 10 of the Family Court Act, a child's wishes should not be adhered to if following them will cause harm to the child. Furthermore, even if the law guardian's position is in direct conflict with a young child's expressed wishes, it is appropriate to advocate a position which results in no harm. In In re Amika P. 179 Misc 2d 387, 684 NYS2d 761 (Fam.Ct. Bronx Co. 1999), the law guardian's advocating against the 10 year old child's return to her mother was the only possible position given the imminent danger to the child upon her return to a parent who did not recognize and could not treat the child's critical medical condition. This too, relative to the new Definition and Standard, is not inconsistent. Rather than draw a contrast with the Family Court proceeding, a comparison can be drawn, showing the similarity in the role when faced with circumstances beyond the knowing capacity of the child.

More recently, in Whitley v. Leonard, 5 AD3d 825 (3d Dept. 2004), the law guardian's advocacy of a position that was not her client's wish was accepted as consistent with the law guardian's role:

Further, we are not persuaded by the mother's contention that the Law Guardian breached her duty to the child by advocating a custody disposition contrary to the child's wishes. It is well settled that a "Law Guardian has [a] statutorily directed responsibility [***4] to represent [a] child's wishes as well as to advocate the child's best interest" (Matter of Carballeira v Shumway, 273 A.D.2d 753, 755, 710 N.Y.S.2d 149 [2000], lv denied 95 N.Y.2d 764, 739 N.E.2d 294, 716 N.Y.S.2d 38 [2000]; see Family Ct Act 241). Contrary to the mother's claim, the Law Guardian properly communicated to Family Court the child's desire to live with the mother and conscientiously explained why she was nonetheless advocating a change in custody. The court also had the opportunity to speak with the child at the Lincoln hearing.



Of note this that the law guardian did articulate the client's position to the court.

One of the most prevalent practices in the appointment of a law guardian used to be the direction that the law guardian provide a report to the court. This, of course, puts the law guardian in the untenable position of being a witness, subject to cross examination. However, judges today are far more aware of the proscription in the law guardian's role against such practices, and they are no longer permitted. When reports and testimony are challenged, they do not stand up to appellate review. In Weiglhofer v. Weiglhofer, 1 AD3d 786 (3rd Dept. 2003), the Court, in a footnote, was quite clear on this issue:

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, 710 N.Y.S.2d 149 [2000], lv denied 95 N.Y.2d 764, 716 N.Y.S.2d 38, 716 N.Y.S.2d 38 [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, 723 N.Y.S.2d 232 [2001]; Reed v Reed, 189 Misc. 2d 734, 737, 734 N.Y.S.2d 806 [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, 413 N.Y.S.2d 372, 385 N.E.2d 1299 [1978], modfg 53 A.D.2d 996, 386 N.Y.S.2d 226 [1976]; Family Ct Act 241, 242). Consequently, courts should not direct law guardians to make such reports.

(emphasis added)



In Cobb v. Cobb, 4 AD3d 747 (4th Dept. 2004), the Court affirmed the finding of contempt, but admonished:

We note, however, that the 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" [***2] (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 [*748] 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 ..."

RETAINING A LAW GUARDIAN

One of the most easily recognized indicia of bias or conflict lies in the inappropriate retaining of a law guardian by one parent or the other for a child. Under no circumstances should one parent, a party to a custody or visitation proceeding, be permitted to hire a lawyer for the child. The abuse of this process is readily foreseeable and never condoned by the courts. The "appearance" of a conflict is clear, and the practice should be discouraged at all costs. In fact, "any doubt about the existence of a conflict should be resolved in favor of disqualification." Matter of Hof, 102 A.D. 2d 597, 478 N.Y.S. 2d 39 (2d Dept. 1984).

On the other hand, as noted in the matrimonial rules, the parties can agree on a law guardian once in court.

There are cases in which a friend or relative of the child consults or recommends an attorney for the child, but neither parent can be involved. P. v. P., NYLJ 11/10/92, p. 29 col.3 (Sup. Ct. Kings Co) and Jurdak v. Jurdak, NYLJ 4/9/96, p.33, col.6 (Sup.Ct. Kings Co.), are two such cases in which the court later confirmed the hiring of the law guardian by directing payment and naming the attorney as "law guardian." The latter of these is "The Client" case, in which the attorney, found by the children's grandmother who had no standing to intervene, directed the children to go watch the John Grisham movie. They thereafter returned with $1 in hand (which was subsequently supplemented by court order, allowing the grandmother to pay in the first instance, subject to reallocation after trial).

Also interesting on the subject is Anonymous v. Anonymous, 233 A.D. 2d 965 , 651 N.Y.S.2d 263 (1st Dept., 1996) (discussed below on the subject of payment of fees). In this matter, the children, who already had a guardian ad litem appointed by a prior judge, and who were dissatisfied with his representation, found their own attorney in New York Magazine's list of 100 best lawyers. They engaged him, and his appointment was confirmed by the trial judge.

Nowhere in the new Standards is there a suggestion that an attorney may be "hired" as law guardian. However, there is no preclusion, anymore than there is such a preclusion in the various statutes establishing law guardians. Only upon the Court's confidence that a lawyer appearing on behalf of a child has not been retained, sought out, or compromised by the involvement of one parent or the other will a law guardian not independently appointed be permitted to appear, and then only if the lawyer is on the panel:

"A lawyer who has met the necessary training and certification requirements established by the Committee to Certify Law Guardians for Appointment in Domestic Relations Matters may apply for and be accepted as law guardians in the First Judicial Department. Agencies or private law firms may not be qualified as a whole to represent children in the First Judicial Department, but individual attorneys employed by such agencies or private law firms may do so if they meet the necessary training and certification requirements."

THE SUGGESTION OF CONFLICT OF INTEREST

It is sometimes suggested that one law guardian cannot represent two children or more in the same proceeding. This is a false presumption, in custody and child protective proceedings alike. On the other hand, it is possible for the law guardian to be put in the position of not being able to continue representing either child.

In the Matter of H Children, 160 Misc2d 298, 608 N.Y.S.2d 784 (Fam.Ct., Kings Co. 1994), the law guardian learned information from one child about another that rendered her representation of either child implausible. If she were to go on representing the one, she would do so against the interests of her former client. If she were to represent the other, she would do so with knowledge of confidences disclosed by the first, and her failure to use them in representing the second would be inappropriate. This untenable situation could only be remedied by the appointment of two new law guardians.

The First Department has recognized the potential for conflict, without presupposing the existence of one:

"A law guardian shall ask the Court to assign additional counsel if the law guardian discovers a potential or actual conflict in his/her representation of multiple children in the same family."



Indeed, one law guardian can represent numerous children in one family, even after one of the children sought different counsel due to emerging issues that rendered the law guardian's representation of him inappropriate. In Anonymous v. Anonymous, 251 A.D.2d 241; 674 N.Y.S.2d 678 (1st Dept. 1998), after the law guardian and two of the children appeared in camera with troubling allegations that involved another of the children, the court agreed that there were no grounds for disqualification, no conflict of interest, as there were no confidences, nothing contrary to the interests of the one who "discharged" the law guardian (and clearly nothing contrary to the interests of the father who took the appeal). The mere existence of up to 8 differing positions among the remaining clients would not suffice to disqualify the law guardian from their representation.

Citing Anonymous, the Second Department reversed an order disqualifying the law guardian on very similar facts in Matter of C. Children, NYLJ April 9, 2001, p. 28. There, the law guardian appealed from the order disqualifying her from representing all five children, when only one child's interests were in conflict, and there were no secrets revealed or even private meetings between the law guardian and the child whose interests would be in conflict with the others. In this matter too, the law guardian herself sought to be relieved from representing the one child with whom there was a clear conflict.

So too in Rosenberg v. Rosenberg, 261 AD2d 623 (2d Dept. 1999), an order relieving a law guardian of the duty to represent two of his three clients was reversed, as no evidence was found in the record that he either had a conflict of interest or that he had failed to diligently represent any of his clients.

The representation of multiple children in one family may be one of the more typical situations in which the lawyer is easily justified in representing in litigation multiple clients with potentially differing interests, which is otherwise discouraged. DR5-105. In fact, simply because the goals of the children are at odds with each other does not necessarily create a conflict.

Zirkind v. Zirkind, 218 AD2d 745, 630 NYS2d 570 (2d Dept. 1995) is a succinctly worded decision in which the Family Court denied of the disqualification of the law guardian: "There is no evidence in the record that the Law Guardian had a conflict of interest or failed to diligently represent the best interests of the children."

In reliance on Zirkind, in one recent case, Matter of Taylor G., 270 AD2d 259, 703 NYS2d 523 (2d Dept. 2000), the Appellate Division reversed the Family Court judge's sua sponte removal of the law guardian for the children. The judge had considered that there would be a conflict of interest if the law guardian continued to represent the children, while the Appellate Division said this was an abuse of discretion, and that the law guardian had "zealously and effectively" represented the clients.

In a clear directive on the issue of two children/one lawyer, the Fourth Department, in Smith v. Smith, 241 AD2d 980, 667 NYS2d 141 (4th Dept. 1997) said: "The record does not support respondent's contention that the children had conflicting interests precluding their joint representation by the Law Guardian."

THE OMNIPRESENT ALLEGATION OF BIAS

While a law guardian may be appointed only if he comes to the matter with no preconceived notions or biases, it would be foolhardy to expect him to retain his neutrality and not develop a position that was, in at least some respects, consistent with one or the other of the parents. If the child has communicated wishes-and her counsel advocates wishes-that appear more consistent with the position taken by one parent or the other, this is not a bias on the part of the child's attorney, but merely the fulfillment of his mandate.

The mere allegation that a law guardian is biased is insufficient to disqualify him/her in absence of any grounds that justify disqualifying a lawyer from representing a client. Stien v. Stien, 130 misc2d 609, 496 NYS2d 902 ( Fam. Ct. Westchester Co., 1985).

So too in Ellis v. Ellis, 233 AD2d 678, 649 NYS2d 951 (3d Dept. 1996), wherein the Appellate Division affirmed the lower court's denial of the disqualification of the law guardian on the grounds of a bias against one parent. "Family Court's decision...was based on the testimony... as to the parties' hostility to each other and not the bias of the law guardian. Additionally, there is no credible evidence in the record that the Law Guardian was biased against the respondent."

However, it is clearly a consideration that a law guardian's representation of the children will not be free of bias, or independent, if the source of the referral is one of the parents. In the Third Department, Fargnoli v. Faber, 105 AD2d 523 (1984) clearly articulated the concerns that any contact between a party and the father's proposed guardian ad litem casts doubt on truly independent representation. This case made clear that the parents cannot represent the interests of the child, nor can the court.

A more recent First Department decision, Kouzoujian v. Kouzoujian, 267 AD2d 8 (1st Dept. 1999), denied disqualification of a law guardian (and forensic) despite arguments that there was bias at the outset by the forensic, and that the law guardian's efforts, with the forensic, at setting up a meeting with the child and a party were improper, to be unpersuasive. (Unclear in the appellate decision is that the issue for which the forensic had been appointed was whether or not the child should even meet the non-custodial parent, about whose existence the child was unaware. Thus, the meeting, which never took place, would have been extraordinary in the course of this case.)

Of more recent note and crystal clear is Davis v. Davis, 269 AD2d 82, 711 NYS2d 663 (4th Dept. 2000). Therein, the court justifiably removed a law guardian who, though originally court-appointed, moved to modify custody on behalf of his clients a year later-without disclosing that it was the father who approached and paid him to do so. "The Law Guardian sought an award of sole custody to plaintiff father, who retained and paid for the services of the Law Guardian. We conclude that the Law Guardian is disqualified from so serving by an inherent conflict of interest." The Appellate Division then reversed the modification that the lower court had granted.

In Eli v. Eli, NYLJ, November 12, 1998, page 25, Justice Oliver in Suffolk County did a fine job of defining the law guardian's role, and discussing the mis-perception of bias so often found in those parent-litigants whose position is not consistent with his or her own. The court therein also clearly defined the standards to be applied in disqualifying the law guardian:

"Accordingly, disqualification of the law guardian upon motion of either of the two parties to this matrimonial action is available only upon a showing of one or more of the following: 1) the law guardian's violation of the Code of Professional Responsibility which would warrant the disqualification of any other attorney who appears in an action for an adverse party; 2) that the relationships and factual circumstances contemplated by the Rules of Judicial Conduct at 22 NYCRR 100.3(E) that may warrant disqualification of the court, exist between the law guardian and the parties or their counsel; 3) that the law guardian has been derelict in the performance of the duties owing to the children or the court; or 4) the law guardian is unqualified for the office of law guardian under the standards imposed by law, the judiciary or court administrators." (Citations omitted)



ETHICAL CONSIDERATIONS

"A law guardian shall act in a manner consistent with the Lawyer's Code of Professional Responsibility."



The Ethical Considerations provide good direction as to the responsibility of any counsel to her client, whether adult or child. "The duty of a lawyer, both to the client and to the legal system, is to represent the client zealously within the bounds of the law," EC 7-1. There is no exclusion for law guardians. In fact, the new Standards specify this obligation:

"A law guardian shall advocate for the child's stated position if the law guardian, on his/her own or with the assistance of a mental health professional and after investigation and assessment of the situation, determines that the child is unimpaired."



EC 7-7 provides that "the authority to make decisions is exclusively that of the client and, if made within the framework of the law, such decisions are binding on the lawyer."

"The law guardian shall assess whether the child is impaired or unimpaired. Impairment is a child's inability to make knowledgeable, voluntary and considered judgement or to work effectively with his/her attorney."

This provision in the standards, cited previously as well, is clearly consistent with EC 7-11, which states that " the responsibilities of a lawyer may vary according to the intelligence, experience, mental condition or age of a client...."



"Assessment of impairment 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 judgement 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 shall 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 law guardian shall 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 otherwise fully participating in the adjudicative process."



When a client is unable to make considered judgments on his or her own behalf, the lawyer has additional responsibilities. The lawyer must "consider all circumstances then prevailing and act with care to safeguard and advance the interests of the client." Ultimately, any disability that "renders the client incapable of making a considered judgment may permit the lawyer to make decisions on behalf of the client." EC 7-12. Further, "If the disability of a client and the lack of a legal representative compel the lawyer to make decisions for the client, the lawyer should consider all circumstances then prevailing and act with care to safeguard and advance the interests of the client."

One of the most important aspects of representing children is not merely the fierce -or even gentle-advocacy in the courtroom, but the constant obligation to advise. "It is the responsibility of the law guardian to act as an advisor to the child,..." Thus, if every lawyer "should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations," as found in EC 7-8, it becomes critical in the case of the representation of a child. In fact, EC 7-3 is helpful in its entirety, to both the law guardian and counsel for the parents, when defining the role:

Where the bounds of law are uncertain, the action of a lawyer may depend on whether the lawyer is serving as advocate or adviser. A lawyer may serve simultaneously as both advocate and adviser, but the two roles are essentially different. In asserting a position on behalf of the client, an advocate for the most part deals with past conduct and must take the facts as they are. By contrast, a lawyer serving as adviser primarily assists the client in determining the course of future conduct and relationships. While serving as advocate, a lawyer should resolve in favor of the client doubts as to the bounds of the law. In serving a client as adviser, a lawyer in appropriate circumstances should give his or her professional opinion as to what the ultimate decisions of the courts would likely be as to the applicable law.



If, however, it is a case where there is no risk of imminent harm to the child, and the law guardian is troubled that he will be ethically required to advocate a position that is offensive to him, the law guardian can and should play a role as an advisor. When appropriate, the law guardian should attempt to persuade the child to reconsider her position, particularly when he will be ethically required to advocate for a result that he believes is not in the child's best overall interest. According to EC 7-8 of The Code, a lawyer "should advise the client of the possible effect of each legal alternative." In addition, the law guardian's "Advice... to the client need not be confined to purely legal considerations."

He should "bring to bear upon this decision-making process the fullness of his experience as well as the lawyer's objective viewpoint," and may "emphasize the possibility of harsh consequences that might result from assertion of legally permissible positions."

While disputes concerning what is best for the client must ordinarily be resolved in the client's favor. In fact, the lawyer does not have to approve of the client's position, EC 7-17, and, while appearing in court, should refrain from expressing a personal opinion concerning the matter at hand. EC 7-24.

"A law guardian shall not communicate with the parties in the absence of their counsel or without counsel's written permission."



Please see the NYSBA Committee on Professional Ethics Opinion 656, which further substantiates the law guardian's role as counsel, and articulates that the prohibition against any attorney talking to another attorney's client applies equally to the law guardian's client, with whom the parents' counsel may not speak. DR 7-104.

An interesting issue of conflict arose in B.A v. L.A., 3/11/03 NYLJ, p.22 col.3 (Family Court, Co.), wherein an application was made by the respondent to disqualify the petitioner's attorney, who was President of the Legal Aid Society. The children were represented by the Legal Aid Society, and the allegations was that the petitioner's attorney had a conflict under DR- 5-101, which states:

A lawyer shall not accept or continue employment if the exercise of professional judgment on behalf of the client will be or reasonably may be affected by the lawyer's own financial, business, property, or personal interests, unless a disinterested lawyer would believe that the representation of the client will not be adversely affected thereby and the client consents to the representation after full disclosure of the implications of the lawyer's interests.



The judge went through an analysis of the potential conflict, and determined that there was no conflict as to the petitioner's lawyer, who had no financial or personal interests at stake. However, the judge invited a similar application to be made relative to disqualification of the law guardian, who might have an interest in pleasing the President of the organization at some point in the future, on application for promotion, for instance.

A recent foray into this area has taken place in the First Department, where an application was made by one parent to disqualify every other attorney and expert, because of their earlier participation in a short-lived educational website. In that matter, the father's attorney, the law guardian, the neutral forensic psychiatrist, the neutral forensic psychologist, and the father's expert psychologist all had participated in this venture. Claiming conflict due to the lack of disclosure of this as well as the mutual business interest, the mother sought-after trial had begun-to disqualify them all, seeking as well a mistrial.

The trial judge, Hon. Judith J. Gische, read a clearly reasoned and articulated decision into the record, denying the application and finding no conflict. Please see the decision, included in this section.

An additional area of interest is the potential for the disqualification of the law guardian as a potential witness. In Scott Herald v. Lea Herald, 305 AD2d 1080 (4th Dept. 2003), the court affirmed the denial of a motion to recuse as well as to disqualify the law guardian, stating that the movant had "failed to meet her burden of if establishing the necessity for that testimony."

The rules for disqualification of counsel can operate to protect the law guardian's clients and the attorney-client relationship as well. In Campolongo v. Campolongo, 2 AD2d 476 (2nd Dept. 2003), the Court affirmed the disqualification of counsel for a parent who set up clandestine forensic evaluations for the children, without notice to or presence of the law guardian. The Second Department found this to be a violation of Code of Professional Responsibility DR 7- 104(A)(1) (see 22 NYCRR 1200.35[a][1]. In allowing a psychiatrist to interview the subject child regarding the pending custody dispute and to prepare a report without the Law Guardian's knowledge and consent, counsel operated to create a denial of the child's due process rights, thwarting the attorney-client relationship.

The most recent word on disqualification comes in Kaye v. Kaye, 2004 NY Slip Op 07641. The First Department affirmed the denial of the mother's application to disqualify the law guardian, the neutral forensic psychiatrist, the neutral psychologist, the father's lawyer, and the father's private forensic, who had all participated in a short-lived web site on divorce issues. Finding that there had been no profiting from one another's participation, the Court also noted that "plaintiff failed to point to any examples of known biases or hostilities the doctors exhibited toward her which might warrant disqualification or condemnation (cf. Rosenblitt v Rosenblitt, 107 AD2d 292, 295 [1985])."

THE APPOINTMENT OF A GUARDIAN AD LITEM AS OPPOSED TO A LAW GUARDIAN

Up until the institution of the First Department Standards, courts were less likely to appoint an attorney for a very young child to advocate his "wishes." While there are no firm rules, there has been a tendency not to appoint law guardians for children under the age of 7, as well as an expectation that until about 12, children may have an opinion, but not necessarily the requisite judgment to formulate one with sufficient reason to direct counsel.

However, under the new Standards, and in reliance on the exception for "impaired clients," there is nothing inconsistent about appointing a law guardian for a toddler or infant. Many judges do not want a "reporter," or for the law guardian to assume, in deed if not in name, the role of forensic evaluator. A guardian ad litem, discussed below as the alternative to the law guardian, is not necessarily a full participant in the litigation process. The law guardian is not a witness, does not "report," and is expected to zealously represent the interests of the client, as appropriate to her age.

If the court adopts a pure advocacy/advisory definition of the "law guardian", the court has the option, under CPLR Article 12, particularly Section 1201 and Rule 1202, to appoint a guardian ad litem. Under such circumstances, the court may expect an investigator, a mediator, a problem-solver, and eyes-and-ears into the family. The court may expect a report from the guardian ad litem, as well as testimony. Courts vary as to whether or not the guardian ad litem may participate at trial, examining and even calling witnesses. Some courts want the guardian ad litem present throughout the entire trial, while others expect him to appear to testify, and no more.

A guardian ad litem need not be an attorney; there is, in fact, a trend toward appointing mental health professionals to act in this capacity. However, there appears to be as well some resistence on the part of these highly trained and skilled professionals to acting as intermediary, appearing at conferences, and "relinquishing" some of their traditional forensic skills and roles to step into the shoes of the guardian ad litem. Further, guardians ad litem who are not attorneys may actually have to hire attorneys to represent them in the various facets of the proceeding. This can be unwieldy, as well as costly over time.

The guardian ad litem , when appointed for a party under a disability (such as age), functions as the litigant would function were it not for the disability. Thus if the disability is infancy the guardian ad litem would do what the child might do as an adult-select, retain, and supervise counsel, gather factual information, and generally assist counsel in the preparation of the case. However, the wishes of the child will only be considered relevant but not determinative. Hence, the Court of Appeals has stated that the standard for guardians ad litem for incompetents is, "it is incumbent upon the guardian to make an objective evaluation of the circumstances and to take such action as will advance what he perceives to be the best interest of the ward; the wishes of the ward will be relevant but not determinative." Furthermore, the guardian "may not be regarded as an unbiased protagonist of the wishes of the incompetent" Matter of Aho [Rhodes], 39 NY 2d 241, Marquez v. Presbyterian Hosp., 159 Misc. 2d 617 (Sup.Ct., Bronx Co. 1994). Thus, when guardians ad litem are appointed the courts usually assume that the guardian will promote the "best interest" standard. Matter of Scott L. v. Bruce N., 134 Misc2d 240 (1986).

In fact, the court in Scott L. v Bruce N, viewed the role of law guardian as a hybrid by nature. The extent to which the child's wishes should influence a law guardian's position must vary "according to the maturity, intelligence, and emotional stability of the child in question." Matter of Scott L, v. Bruce N.. Thus, if the child in the proceeding were too young to properly articulate his or her wishes or provide assistance to counsel then the function of the law guardian would "differ little from that of a guardian ad litem."Matter of Scott L. v. Bruce N.

Indeed, the New York State Bar Association's Law Guardian Representation Standards, Volume II: Custody Cases[1992], is premised on the view that law guardians will make an independent investigation and express the child's view. "When the child is too young to articulate his or her wishes or provide assistance to counsel, the law guardian must of course determine the child's interest independently" (Commentary to Standards B-2 at 22-3). Conversely, where the child is a teenager of reasonable sound judgment, the law guardian's role should lean heavily toward the advocacy approach since the wishes of a mature youngster will carry greater weight with the court than those of a younger child. Eschbach v. Eschbach, 56 N.Y. 2d 167, (1982).

The First Department, while never adopting a bar-none rule that children's wishes must be followed, has specifically held that a 15 year old is entitled to the advocacy of a law guardian, who the Court substituted for a guardian ad litem the child did not believe was acting in her interests. In Albanese v. Lee, 272 AD2d 81, 707 NYS2d 171 (1st Dept. 2000), the Court said, citing Rebecca B. , 227 AD2d 315, and Scott L v. Bruce N.:

"... The record shows that the older child, an unquestionably bright and mature 15-year old, has repeatedly expressed her opposition to visitation and her displeasure with the representation of the SPCC, which she believes is biased towards her father, and that the father has a history of committing violent acts against the mother in the children's presence and is a convicted [***2] felon. Furthermore, the SPCC itself has performed and described its role as being a neutral, rather than the children's advocate, and there is confusion in the record as to which role it was intended to play..."

In a recent, unreported First Department decision, a trial court agreed with a litigant that the guardian ad litem should be removed-and substituted for that role a law guardian for the child who had matured considerably in the 5 years since the litigation began. The court declined to remove the attorney, and simply re-appointed the same person as "law guardian."

With the new OCA Part 36 Rules, there are new questions to be reconciled between the various sets of governing directives. Under the OCA rules, there are different standards for training for law guardian than for guardian ad litem. For the most part, guardian ad litem training is for Surrogate's Court proceedings, whereas in matrimonial matters, there is a special use and meaning of the term in the representation of children's interests. Additionally, the First Department, at 22 NYCRR 614.1, has included CPLR 1201 guardians ad litem in the definition of "law guardian" to which the rules apply:

614.1.  Introduction



   The justices of the Appellate Division of the Supreme Court in and for the First Judicial Department, by virtue of the authority vested in them to regulate the practice of law do hereby, effective February 1, 1999, adopt this Part to establish rules governing the Committee to Certify Law Guardians for Appointment in Domestic Relations Matters and to set forth rules and standards regulating the qualifications, performance and professional conduct of the attorneys who accept appointment as a law guardian for an infant child or children pursuant to 249(a) of the Family Court Act or 1201 of the Civil Practice Rules and Law and 202.16(f) of the Uniform Rules of the Trial Court.



Another use of guardians ad litem that is unique to our practice is the appointment of someone to act as the litigant when the party him or herself is impaired. This, too, would seem to be different than the guardian ad litem in Surrogate's or even Housing Court. There will be, no doubt, more from OCA on these issues.

MALPRACTICE AGAINST LAW GUARDIANS AND GUARDIANS AD LITEM

Up until recently, there has only been one reported decision in New York on the issue of one parent's allegations of and litigation about malpractice on the part of the child's representative. That one case was, of course, Marquez v. Presbyterian Hospital, 159 Misc.2d 617 (Sup.Ct. Bronx Co. 1994), decided by the late Justice Lewis R. Friedman. Declining to find that a FCA Article 10 law guardian, whose role is more like that of a guardian ad litem, should be judged by the same standards of malpractice as a law guardian whose role is more advocacy than "best interests," Justice Friedman defined a standard of good faith, holding:

"The court concludes that the proper standard where there are very young children, and the guardian ad litem role predominates, is that liability should attach only if there is a showing that the law guardian failed to act in good faith in exercising discretion or failed to exercise any discretion at all." 159 Misc. 2d at 625



In addition, Justice Friedman also noted that "the usual malpractice standard places a law guardian, at least for a very young child, at substantial risk of the ultimate court decision."

The 8 years from Marquez until early 2002 have seen no further cases of note on this issue. Then, February 2002 arrived with no fewer than three cases, two at the appellate level, all dealing with malpractice actions against law guardians. And, all three resulted in the same outcomes: dismissal. However, the theories on which the dismissals were based differed.

The first of the three cases was Bluntt v. O'Connor, 737 NYS2d 471 (4th Dept. 2002). A lengthy decision in a malpractice case brought, not surprisingly, by a highly contentious and disgruntled parent-litigant, the Fourth Department affirmed the dismissal of the complaint against the law guardian on several bases.

The first was standing, which the court justifiably found the plaintiff-parent didn't have. There was no privity between the plaintiff and the law guardian.(1) Additionally, the parent has a unique self-interest in the substance and outcome of the litigation:

"At the time the complaint in the instant action was filed, plaintiff was still in litigation with the father, attempting to suspend visitation with him because of alleged second-hand smoke. She clearly had an interest in disputing defendant's opinion, which supported visitation [*15] with the father, and she had an interest adverse to the child's interest in maintaining a relationship with both parents. Here, defendant's duty was to the child, not to either parent." 737 NYS2d at 14.



In addition, the court found that there was further conflict inasmuch as the plaintiff has a conflict with the child, since the child sought a relationship with the other parent which the plaintiff opposes. Thus, plaintiff could not bring the action in the child's name.

On the issue of the merits and the legal standard to be used for malpractice, the Fourth Department found much in accord with both Marquez and the numerous cases that have arisen in other states. Noting that: "Most courts that have considered suits by disgruntled parents against attorneys appointed by courts to protect children in custody disputes have granted, on public policy grounds, absolute quasi-judicial immunity to the attorneys for actions taken within the scope of their appointments," the Fourth Department agreed that to allow such suits, when there are other remedies available for poor performance, would be to proffer vast disincentives to the pool of attorneys willing to accept these assignments, or even warp the judgement of those GAL's who are appointed toward the appeasement of disappointed parents.

Days later, the Second Department joined the Fourth Department in addressing and dismissing such a suit. In the most succinct decision on the subject, the Second Department held that there was no privity between the parent and the law guardian, and she thus lacked standing. Additionally, while not discussing the standard to be used in assessing malpractice for a law guardian, the court found that "In any event, the plaintiff failed to set forth any of the elements of a prima facie case of legal malpractice."

Finally, the month of February, 2002, saw yet another case, from Supreme Court, Greene County. In Bradt v. White, 2002 N.Y. Misc. Lexis 117 (2/25/02), Justice Stein dismissed a third malpractice complaint. This last one including allegations of criminal behavior, including harassment. Therein, after an analysis of other states' rulings on similar issues, the court held that "The policies favoring immunity clearly apply to the claims set forth in paragraphs [seven paragraphs]. All those claims apparently concerning defendant's conduct directly relating to the performance of his duties as law guardian in the Family Court proceeding, and the threat of civil liability for such conduct should not be available to inhibit defendant from any necessary investigation and advocacy on behalf of the children..." In other words, the public policy deterrent argument once again favors dismissal.

However, while the court did find that the policies favoring immunity did not reach to the allegations of criminal conduct, it also found that the pleadings failed to state a cognizable cause of action for damages.

More recently, yet another court dismissed a parent's malpractice claim for lack of standing. Drummond v. Drummond, 291 AD2d 368 (2d Dept. 2002). The Appellate Division agreed that the mother's claim of malpractice was "without merit," and noted she had no attorney-client relationship with the law guardian. Additionally, the court in a subsequent decision, Drummond v. Drummond, 305 AD2d 450 (2d Dept. 2003) affirmed the imposition of sanctions against the mother's attorney for abusing the judicial process, wasting the Court's resources, and to prevent future conduct of this nature. Further, the court was unimpressed with the attorney's advice to demand arbitration of the law guardian's fees.

There is no doubt that we have not seen the end of litigation on this issue. New cases should result in clearer standards for assessing malpractice. In the First Department, the Law Guardian Standards will perhaps be a deterrent to future litigation, for compliance with the Standards would appear to limit exposure.

USE OF A CHILD'S OUT-OF-COURT STATEMENTS IN CUSTODY MATTERS

The use by parents in testimony of their child's out-of-court statements is a common practice in custody matters. For law guardians, this can be a double-edged sword. The admissibility of these statements is equally common-or absolutely forbidden, depending on the court, case, and circumstances. There is no statute specifically permitting this, and thus the statements are distilled to their simplest form-hearsay-no matter how relevant they seem. However, this most assuredly does not prevent their use in many circumstances.

Some judges will permit the witness to use the child's statements under the exception that they are not being admitted for the truth, but rather to justify or explain the response by the parent. Dad can testify that Johnny told him that Mommy's boyfriend beat him-not to prove the truth of the beating, but to explain why Dad withheld Johnny after his last visit.

Other judges will permit the use of the hearsay statements without qualification.

However, there is a statutory exception to the child's statements-as-hearsay rule. It is, in fact, codified in Family Court Act 1046 (a) (vi):

previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence, but if uncorroborated, such statements shall not be sufficient to make a fact-finding of abuse or neglect. Any other evidence tending to support the reliability of the previous statements, including, but not limited to the types of evidence defined in this subdivision shall be sufficient corroboration. The testimony of the child shall not be necessary to make a fact-finding of abuse or neglect; and...



In other words, the use of the statement is permissible as long as it is corroborated by other evidence "tending" to support the reliability of the statements. This, too, has been the subject of dispute.

In Matter of Christina F., 74 NY 2d 532 (1989), the Court of Appeals was asked whether or not the child's out-of-court statements in an Article 10 matter could be corroborated by the same child's in court statements. Contrasting that matter with an earlier one, Matter of Nicole V., 71 NY2d 112 (1988), in which the child's various out-of-court statements to several individuals could not be used to cross-corroborate each other,(2) despite the frequency or implied consistency of them, the Christina Court permitted the use of the child's own testimony to corroborate the hearsay, thus making it admissible under the statute. The Court specifically noted:

Nothing in the broad, inclusive definition of corroboration contained in section 1046 (a) (vi) forecloses use of the child's own testimony to corroborate her prior statements. With the purpose of the corroboration requirement being the need to buttress hearsay evidence -- and not any inherent untrustworthiness of children's statements -- it should be clear that a child's own account cannot be categorically ruled out as corroboration if it is given in circumstances that tend to add to the reliability of the hearsay evidence.



The rule against hearsay in custody cases would appear ever-more air tight.

There is not a single mention of a Family Court Act Article 10 proceeding in this matter, only the boot-strapping use of 1046 (a) (vi) to permit the child's hearsay regarding the issue of abuse, but in the sole context of custody. This presents a fascinating use of a judicially-devised segue from impermissible to permissible hearsay in custody matters.

The history of this reading of the statute dates back to LeFavour v. Koch, 124 AD 2d 903 (3rd Dept. 1986). Decided soon after the 1985 amendment to FCA 1046 (a) (vi), which eased the restrictions on the corroboration of the child's hearsay, the LeFavour Court explained:

Nevertheless, the gravamen of this case involves child abuse, and the question that arises is whether the hearsay exception provided for in Family Court Act 1046 can be applied in this situation....Family Court Act 1046 (a) (vi) was amended in 1985 (L 1985, ch 724) to ease the formerly strict requirement that children's hearsay statements regarding abuse be corroborated. Corroboration is still required in order to make factual findings of abuse or neglect, but the section now provides, in pertinent part, that: "Any other evidence tending to support the reliability of the previous statements, including, but not limited to the types of evidence defined in this subdivision shall be sufficient corroboration. The testimony of the child shall not be necessary to make a fact-finding of abuse or neglect" (Family Ct Act 1046 [a] [vi]). This amendment signifies the intent of the Legislature to enable courts to deal more effectively with various forms of child abuse and neglect and to protect children from such conduct. In the case before this court, petitioner seeks to protect her children from child abuse, the very object of the legislation. The harm sought to be remedied is the same. We therefore conclude that Family Court Act 1046 (a) (vi), as amended, is applicable to this proceeding."



The Third Department defined the legislative intent as "to protect children from child abuse," and thus found the statute applicable to custody matters where abuse was raised.

On the other hand, the Fourth Department, in 1993, declined to do the same, and read the words of the statute quite literally. In Peter S. v. Cheryl A.S., 190 AD 2d 1038 (4th Dept. 1993) the claim that a child's hearsay was admissible was rejected in a custody matter when it related to abuse: "In our view, Family Court Act 1046 (a) (vi), which by its terms is expressly applicable to article 10 proceedings, is not applicable to this article 6 proceeding."

Nonetheless, late last year, the same court held that the statute does apply in custody matters. In Matter of Stacey L.B. v. Kimberly R.L., decided within the last 2 months at 2004 N.Y. App. Div. LEXIS 13896, November 19, 2004, a unanimous court stated that:

"Respondent did not preserve for our review her contention that the court erred in admitting hearsay statements of the child in violation of Family Ct Act 1046 (a) (iv) [sic] (see Matter of Tracy v Tracy, 309 A.D.2d 1252, 1253, 765 N.Y.S.2d 548; Matter of Peter S. v Cheryl A.S., 190 A.D.2d 1038, 1039, 593 N.Y.S.2d 656). In any event, such statements are properly admitted where, as here, there are allegations of abuse or neglect and the statements are corroborated [citations omitted].



The 4th Department may have been given the impetus by a 2003 case out of the 3rd Department, Rosario WW v. Ellen WW, 309 AD 2d 984 (3rd Dept. 2003), wherein the Court, once again in a custody matter, permitted the child's hearsay relative to abuse, saying:

The father contends that Family Court improperly permitted the mother to testify regarding hearsay statements made by the children. This Court has carved out an exception to the hearsay rule in custody cases involving allegations of abuse and neglect of a child, based on the Legislature's intent to protect children from abuse and neglect as evidenced in Family Ct Act 1046 (a) (vi) [citations omitteed]. The mother's testimony revealing statements of the children as to conduct by the father that would constitute acts of abuse and neglect under Family Ct Act article 10 was properly admitted because it was corroborated by other evidence, including the testimony of a teacher and counselor (see Matter of Baxter v Perico, supra at 717; Matter of Daniel R. v Noel R., supra at 707).



The Second Department, too, has permitted the child's hearsay, provided it is corroborated. In Albert G. v. Denise B., 181 AD2d 732 (2nd Dept. 1992), the Court held in a Family Court Act Article 4 matter:

Here, since the witnesses' testimony concerned allegations of abuse, the hearsay exception provided for in Family Court Act 1046 can be applied (see, Matter of Le Favour v Koch, 124 AD2d 903; Jane P. v John P., 135 Misc 2d 400; People ex rel. Cusano v Leone, 43 NY2d 665). Therefore, the testimony was properly received into evidence. Furthermore, we find that the corroboration required by the statutory provision is present.



The First Department has had a slightly different opportunity to address this recently. In Nilda S. v. Dawn K., 302 AD 2d 237 (1st Dept. 2003), the proceeding before the Family Court judge was a combined custody/neglect proceeding. Affirming the use of the hearsay testimony, the Appellate Division said:

Contrary to petitioner's argument, the therapists' reports, Administration for Children's Services' reports, and colloquy of the family therapist were properly received in evidence at the joint hearing on her petition for custody and the contemporaneously pending neglect petition against respondent Dawn K. The evidence, although hearsay, was admissible at the dispositional hearing following Dawn K.'s admission of neglect (see Family Court Act 1046 [a]), and, under the same hearsay exception, in the custody proceeding, since the issues involved in the two proceedings were inextricably interwoven (see Matter of Le Favour v Koch, 124 A.D.2d 903, 508 N.Y.S.2d 320, lv denied 69 NY2d 605).



This would seem to be a much narrower interpretation of the statute, permitting the use of the child's out-of-court statement in a custody matter only because it is intertwined with-and heard with-an actual Article 10 proceeding as well.

One of the most thorough discussions of the use of the child's out-of-court statements in a custody matter is in Ponzini v. Ponzini, 135 Misc.2d 468 (Fam. Ct. Suff. Co., 1987). The father sought to offer testimony about the derogatory statements his four year old son reported to him as having been said by the mother's boyfriend. The court went beyond simply sustaining the objection, and wrote a full decision on the issue. Citing to the "relaxed" rules established for taking a child's testimony in Lincoln v. Lincoln, 24 NY2d 270 (1969), Judge Hurley declined to permit hearsay testimony that was not consistent with the clear language of the statute, and further specifically found that there is no statutory scheme permitting the use of hearsay in a custody matter.

What must be noted as well is that there are clearly many cases in which the practice of using FCA 1046 (a) (vi) is not challenged. In a dissent (on the issue of the non-appointment of a law guardian) by Justice Spain in the Third Department, in Cole v. Reynolds, 8 AD3d 703 (3rd Dept. 2004), it was noted that the allegations were of such a serious nature that the trial judge had invoked the statute to permit the child's out-of-court statements. While this reference was supportive of the dissent's concern that critical nature of the proceedings required a law guardian, what we can take from this is that no appellate issue was raised on the hearsay. (Noteworthy is that the trial court found the facts of the case disturbing enough to rely on FCA 1046 (a) (vi) to permit hearsay, but not enough so to invoke Article 10's mandate for a law guardian.)

Taking the trend in the appellate courts one step further, if a court can permit hearsay when actual "abuse" is an issue in a custody matter, then it should also be able to permit hearsay regarding alleged "neglect" in a custody matter, since that is equally consistent with the statute. The court has to hear the allegations in order to determine whether they constitute neglect, even if corroboration is offered. The level of "neglect" that may influence a custody decision may be different than what would result in a finding of neglect under Article 10, which leaves the field wide open to a variety of allegations-from "mommy gave me sour milk and I got sick" to "daddy left me in the street alone while he went into the store" to "daddy doesn't make me go to school when I'm with him." It would appear that all the child's out-of-court statements might find their way into the trial testimony. Statutory direction would be definitive and decisive.

Right or wrong, however, the truth is that courts frequently seek information as to the child's words and deeds, and seek it from the adult witnesses available. That this is often followed up with an in camera interview, on the record, may fall within the Family Court statute relative to abuse and neglect matters, but still does not address the issue of the use of the child's words in hearsay testimony in custody.

FEES FOR LAW GUARDIANS IN CUSTODY MATTERS

The first time this issue was definitively addressed was by Justice Silbermann in Anonymous v. Anonymous, affirmed at 233 A.D. 2d 965 , 651 N.Y.S.2d 263 (1st Dept., 1996). In her opinion, Anonymous v. Anonymous, NYLJ 9/8/95, p. 25, Justice Silbermann ruled that the law guardian was not bound to bill according to the statutory rate for court appointed law guardians. Indeed, she went into detail clarifying that the statutory scheme permitted children to choose counsel(3), to apply the Family Court Act 241, 242 and 249 to permit her to confirm the appointment upon his application that she do so, and to provide for payment by the parents if they could afford it. She called attention to the fact that Judiciary Law 35, is called in its very title: "Assignment of counsel to indigent persons..." Further, subsection 4 of that statute specifically permits the authorization of higher rates, even when the assignment is made under the statute: "In extraordinary circumstances the court may provide for compensation in excess of the foregoing limits."

Looking at the statutory scheme, there can be no question that payment of the fees for this necessary service provided to a party's child is contemplated by the statutes. The appointment of a law guardian is made "if independent legal counsel is not available to the child." (FCA 249 (a).) There are two circumstances that would dictate the "unavailability" of independent counsel. Where a wealthy child's parents are acting jointly to provide the best representation they can afford to their child in a juvenile delinquency case, independent counsel is clearly "available" and there is no question that it will be paid privately at market rates. However, this particular "availability" does not exist where the parents are at odds, and the very subject matter of the litigation is the child for whom counsel must be provided. There is nothing "independent" about an attorney selected by one parent or the other in a custody case, and thus the court is in the best position to select someone. There is nothing, however, to suggest that the appointed counsel cannot be paid at the same rate the parents would pay were they able to jointly select counsel for the child. The second form of "availability" is the ability to pay fees. Independent counsel is simply not "available" to the poor, and thus the Family Court Act, in conjunction with the Judiciary Law, permits the appointment at 18-b rates.

Since the Anonymous case, there has been a plethora of case law and guidance on this subject. The courts that have cited novel and different doctrines to support this practice. For example, in Colangelo v. Colangelo,176 Misc.2d 837, 673 N.Y.S.2d 897 (Sup. Ct. Oneida Co. 1998), the court predicated parental payment to the law guardian based on the doctrine of necessaries, whereby the expenses of necessaries for a minor can be charged to a legally responsible relative. This is a critical point of view and determination. In bankruptcy, fees payable to third parties for necessaries provided to minors are NOT dischargable debts. Thus, while not necessarily paid in full out of the bankruptcy estate, the fees are not discharged, and can be recaptured when the debtor's "new" funds come in. Please see In Re Peters, 964 F2d 166 (1994) as well as In Re Stacey, 164 BR 210 (1994).

As recently as March 4, 2002, in Falkenburg v. Bernstein, NYLJ March 4, 2002, page 17, Justice Gische appointed a law guardian, saying: " These fees shall be apportioned to plaintiff 2/3rds and to defendant 1/3rd, consistent with how they share other child support obligations in their agreement." The judge clearly believed that the cost of the law guardian should be borne by both of the parents in the same way that child support obligations are borne.

While not a CSSA obligation,(4) this line of cases supports the finding that a child's lawyer-just like other professionals-is a support obligation.
Should a party challenge the law guardians fee the case may be remitted for an evidentiary hearing so that the law guardian can substantiate, and the complaining parent can challenge such claims as to the value of services rendered. Spenello v. Spenello, 274 A.D.2d 822 ( 3d
Dept. 2000)., Gadomski v. Gadomski, 245 A.D.2d 579, 664 N.Y.S.2d 886 (3d dept. 1997), Axelrod v. Axelrod, 715 NYS 2d 870 (2d Dept. 2000), Lande v. Lande, 239 AD2d 563, 658 NYS2d 990 (2d Dept. 1997), Farber v. Farber, 222 AD2d 646, 636 NYS2d 374 (2d Dept. 1995).

Of course, there are cases wherein the law guardian is paid on motion(5). Palumbo v. Palumbo, 273 AD2d 287, 710 NYS2d 536 (2d Dept. 2000), Rosenbaum v .Rosenbaum, 270 AD2d 242, 704 NYS2d 839 (2d Dept. 2000).

What cannot be directed is arbitration of the law guardian's fees. See, Drummond v. Drummond, 291 AD2d 368 (2d Dept. 2002), wherein the movant's attorney was sanctioned for this frivolous demand.

Law guardian fees can also be allocated based on a "fault" or responsibility theory. In E.S. v. A.S., NYLJ 8/9/96, the trial court re-allocated the law guardian's fees in the end based upon the observation that the plaintiff had caused them to be incurred in substantial part. "The court after trial has found that the positions taken by plaintiff relative to custody and support were unreasonable, meritless and instigated a prolonged litigation. This added to the costs by necessitating a law guardian, forensics and a trial [the equitable distribution issues having been settled]."

In another more recent case, the Appellate Division affirmed the trial court's directive that the parent who violated an order would be responsible for the law guardian's fees. Tran v. Tran, 716 NYS2d 5 (1st Dept. 2000). So, too, in Kasal v. Kasal, 297 AD2d 624 (2d Dept. 2002), wherein the court affirmed an allocation of 100% of the law guardian's fees to the parent who relocated in violation of the parties stipulation of settlement, and at the same time, increased the counsel fee award to the non-offending party's attorney to 100%.

An interesting twist, which could trigger the participation of a law guardian in

support issues despite the Standard's general prohibition of same(6), is found in Williams v. Williams, NYLJ June 11, 2001, page 21. Therein, the father moved to reduce child support, based on interference with visitation. Referee Schachner held that: "The law guardian's fees now at issue were incurred as a result of plaintiff husband having applied to terminate his "obligation to pay child support ... of the parties" [son] "based on interference by the defendant with the plaintiff's visitation rights so far as the parties' son is concerned"...I have determined that plaintiff should be responsible for the entire law guardian's fee..."

Fees are generally allocated based upon the parties circumstances. Please see Kearns v. Kearns, 270 AD2d 392, 704 NYS2d 627 (2d Dept. 2000), wherein the husband was directed to pay 100% of the fees of both the law guardian and the guardian ad litem.

While "retainers" are generally permissible, the provision for an advance on fees where a law guardian (and, similarly, forensic evaluator) may be appointed is not permissible. Ingarra v. Ingarra, 271 AD2d 573, 706 NYS2d 171 (2d Dept. 2000).

By contrast, rulings in the Family Court may differ from of those of the Supreme court, depending on the Department. In Lynda A. v. Diane T.O., NYLJ, 6/30/98, 4th Dept., the Appellate Division held that the Family Court had "Exceeded its authority in directing the parties to pay the legal fees and expenses of the Law Guardian," and that "Family Court is a court of limited jurisdiction, and it may not exercise powers beyond those granted to it by statute." It should be argued, however, that the same scheme that permits payment in Supreme Court should apply to Family Court.

It goes without saying that all these cases involve applications for payment made within the caption of the underlying action or proceeding. In none of these cases has the law guardian had to bring a plenary action for the collection of court-ordered fees. However, this is not to say that the issue has not been raised. In Stephens v. Stephens and Weiss v. Weiss, decided together at 249 A.D.2d 191; 671 N.Y.S.2d 268 (1st Dept. 1998), leave to appeal denied 92 N.Y.2d 808; 700 N.E.2d 1230; 1998 N.Y. LEXIS 2822; 678N.Y.S.2d 594, the issue had not been raised in the court below. However, the First Department did indeed resolve this dispute:

Both plaintiffs failed to raise any of the arguments now advanced on appeal, and they are therefore unpreserved for review (see, Melahn v Hearn, 60 NY2d 944, 945).[*2] Were we to review them, we would find that both motion courts properly exercised their discretion in appointing a Law Guardian for the parties' children, and directing that the parties pay the Guardian's fee (see, Rotta v Rotta, 233 AD2d 152). The motion courts were not constrained to award the statutory rates set forth in Judiciary Law 35 (3) and the amounts awarded are appropriate (ibid.). Further, the Law Guardian could seek to enforce payment of her fees through Domestic Relations Law 244, rather than by plenary action.

The Second Department was quite clear in its criticism of a law guardian's billing policy just a year ago. In Campo v. Campo, 3 AD2d 565 (2nd Dept. 2004), the Court rejected the law guardian's fee, higher than his usual rate, and refused to permit him to bill for his fee application or defending the appeal on his fees. The Court directed that he wait till after the case was over to seek his fees, at which time a hearing about reasonableness would be held. What is clear from this matter is that the law guardian's billing practices were called into question, rather than his right to the fees.

PRIVATE PAYMENT OF LAW GUARDIAN FEES IN FAMILY COURT

By contrast, rulings in the Family Court may have, in the past, differed from of those of the Supreme court. Until now, this has been so mostly upstate, in matters such as Lynda A. v. Diane T.O., NYLJ, 6/30/98, 4th Dept., wherein the Appellate Division held that the Family Court had "Exceeded its authority in directing the parties to pay the legal fees and expenses of the Law Guardian," and that "Family Court is a court of limited jurisdiction, and it may not exercise powers beyond those granted to it by statute."

However, the Second Department has resolved this matter recently in Plovnick v. Klinger, 2004 N.Y. App. Div. LEXIS 10117, decided on July 30, 2004. Therein, the Court took great pains to distinguish the circumstances that might result in a Judiciary Law 35 assignment, and, citing C.E. v. P.E., 177 Misc.2d 272 (Sup. Ct., Bronx Co., 1998), to point out that under 35 (3), " "there is no basis for nonindigent private parties to have their litigation subsidized at bargain rates." The Court in C.E. v. P.E. went on to add: "At bar the parties have demonstrated an ability to retain counsel for themselves of substantial experience and standing within the matrimonial bar. The parties' children should likewise be entitled to counsel with expertise and experience to adequately protect their rights. The law guardian is entitled to be paid for the reasonable value of her services."

The Second Department, citing Colangelo v. Colangelo, supra, and Felder v. Mohr, supra, addressed the child's counsel in the context of providing a necessary service as well.

1. On a remote level, it is urged that law guardians not enter into retainer agreements with the parents, inasmuch as the court has ordered payment, and the agreement would establish an unnecessary and potentially troublesome level of privity.

2. On the other hand, out-of-court statements of two children can be used to cross-corroborate one another. Corroboration requirement of FCA 1046(a)(vi) was met, even if validation testimony of expert was insufficient to corroborate out-of-court statements of children, where statement of each child cross-corroborated statement of other child. In re Jennifer T. , 212 AD 2d 1039 (4th Dept. 1995 ).

3. The children had seen the attorney listed as one of New York's top 100 in a magazine article, and contacted him on their own.

4. However, see above, for a discussion of the concept of "necessaries."

5. It is important to keep in mind that all the cases cited herein are ones in which a law guardian's fees are challenged. It has long been the practice of the appointing court to direct payment in the order of appointment, and only upon default of that provision should recourse to motion practice (and hearing) be necessary. Under the Part 36 Rules, effective June 1, 2003, payment and retainer provisions are included in the Order of Appointment. See http://courts.state.ny.us/ip/gfs/LawGuard_11_03.pdf

6. The very last provision of the Standards specifies that: A law guardian shall not participate in contested monetary issues raised in a matrimonial proceeding such as equitable distribution, maintenance and child support, except where relevant to custody and visitation determinations. Please see Rosado v. Muniz, NYLJ August 31, 2001, page 17, wherein a law guardian appointed by a previous hearing examiner to "protect the child's interests" in the child support matter was removed before trial, not for misconduct, but as no longer being necessary.

Last updated January 13, 2005

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