Selected 2008 Cases on the Role of the Law Guardian (Attorney for the Child)

By: George E. Reed, Jr.

Amato v. Amato, 51 A.D.3d 1123 (3d Dep’t 2008). Assignment of LG in custody case is discretionary, but here an abuse of discretion not to assign one. Assigning LG is the “preferred practice.” Role of LG for this 3-year-old child would include “assessing the interests of the child.”

Betts v. Betts, 51 A.D.3d 699 (2d Dep’t 2008). Ignoring LG. The appellate divisions are consistent on the principle that, although appointment of an LG is discretionary, once one is appointed the court cannot disregard his status as an attorney of record. Unfortunately, probably because the error is made all too frequently, they frequently decline to remand the case. In Betts, however, the Appellate Division reverses and remands expressly based on the failure to appoint an LG. The case may also stand for a firm category in which LG’s must be appointed: where there are allegations of a child protective nature. Here one parent alleged that the other subjected the children to “inappropriate corporal punishment.”

Bluemer v. Bluemer, 47 A.D.3d 652 (2d Dep’t 2008). Private pay LG in indigent case. In this Supreme Court case, even though father was so indigent as to qualify for $25/month child support, he must pay 80% of LG fee and forensic’s fee.

Christina M.M. v. Shondell R.B., 48 A.D.3d 1202 (4^th Dep’t 2008). Failure to advocate. Criticize LG for failure to advocate on mother’s motion for summary judgment; reverse and remand for a hearing on visitation issue.

Cervera v. Bressler, 50 A.D.3d 837 (2d Dep’t 2008). Overly aggressive LG (the apparent point of the case). The Court made several critical points raising more questions than it answered:

(1) on a motion to require supervision of visitation, the LG “included facts which were not part of the record, but which constituted hearsay gleaned from the mother.” (Comment: since the record on a motion consists of the affidavits [plus testimony later if the motion goes to a hearing], it is not clear what record the Court is saying the affidavit went beyond. Also, it is not clear why hearsay of a party would be objectionable on a motion, as the party could just chime in and restate the same allegations.)

(2) the behavior on the part of the LG, “as well as his repeated ad hominum [sic] attacks on the father’s character, is both unprofessional and improper, as it amounts to the attorney for the child acting as a witness against the father, in violation of the Rules of the Chief Judge (see 22 NYCRR 7.2[b]).” (Comment: it is unusual to use the term “ad hominem” to refer to statements about a party, as opposed to another attorney. The most commonly encountered situation is where an attorney makes a personal comment about the adversary attorney rather than confining himself to the adversary attorney’s arguments. If a parent is unfit an LG should try to convince the courts of his unfitness. On the other hand, the Court may mean that the attorney made unfounded accusations or expressed himself in a rash or abusive manner. The opinion does seem to channel the old view of the LG as a kinder and gentler attorney than counsel for adult parties, but if the Court is using one dictionary definition the ruling would be far narrower than disapproving of statements by the LG as to a party’s character or fitness: Compare Black’s Law Dictionary (“To the person. A term used in logic with reference to a personal argument.”) with Webster’s New International Dictionary, 2d Ed., (“To the man; -- said of an argument directed at or appealing to one’s passions or prejudices rather than one’s intellect.”)

Cieri v. Cieri, -- A.D.3d --, 867 N.Y.S.2d 472 (2d Dep’t Nov. 5, 2008). Ignoring LG. Supreme Court granted a motion to change custody, without a hearing and in the absence of the LG. The Appellate Division reversed and remanded for a hearing. The case does not necessarily indicate that the disregard of the LG alone would warrant the remand. (Comment: it is hard to avoid the observation that failure to treat the LG as a full-fledged attorney of record and scrupulously avoid proceeding in the absence of an attorney of record is an error which is disproportionately made in the Supreme Court rather than Family Court. The problem probably reflects a number of factors, such as that family adjudication is not the primary area of expertise for Supreme Court, that Supreme Court has many other sorts of cases in which there are no LG’s, that Supreme Court is not child-focused, and that the need to deal with extensive issues other than custody and visitation opens the door to excusing the absence of the LG or even failure to give notice to the LG of the proceeding, perhaps aggravated by the parties’ interest in minimizing the LG’s fees in those frequent cases [outside of the Third Department] in which the LG’s fees will be paid for by one or both parties.)

(Comment: there is an additional problem which comes up more frequently in Supreme Court than in Family Court, particularly due to the fact that the attorneys for the parties have to confer about a range of divorce issues not involving the LG. Despite the fact that one disgruntled parent frequently complains that the LG is against him, it is by no means fair to assume that at least one parent will be advocating for what is best for the child. Where neither parent cares enough to do so, and the LG does his job, the LG can be resented by both parents, making it easy to marginalize his involvement and induce the judge to do the same. Not surprisingly, matrimonial practitioners prefer LG’s who do not rock the boat and feel most comfortable with those whom they see frequently, a situation which lends itself to the development of Supreme Court LG work as a cottage industry.

Delaney v. Galeano, 50 A.D.3d 1035 (2d Dep’t 2008). LG disregarding client’s directions. The LG had moved to hold the mother in contempt, and then appealed from the denial of the motion and persisted with the appeal even though his 14-year-old client directed him not to. The Appellate Division noted that the LG had “failed to demonstrate any basis upon which the child’s preference may properly be disregarded”, citing Rule 7.2, and dismissed the appeal as withdrawn (i.e., withdrawn by the client).

Figueroa v. Lopez, 48 A.D.3d 906 (3d Dep’t 2008). LG a full-fledged attorney of record. Another case dealing with the vagaries of assigning LG’s in custody cases. The assignment of an LG is discretionary, but it is preferred (Amato), and a trial judge may be reversed or at least disapproved for an abuse of discretion for failing to appoint an LG. (On the other hand, there does not appear to be any criticism for appointing LG’s unnecessarily. ) Once an LG is assigned, the appointment appears to be irrevocable, although practice would indicate that the law is not clear as to subsequent proceedings, such as modifications, violations and enforcement, especially as to the first appearance on such new proceedings. In Figueroa, the Court rules that an LG once appointed must be permitted to participate fully in a proceeding, and must not be relegated to a meaningless role. This rule is particular likely to be violated in divorce cases (not Figueroa), wherein the existence of time-consuming financial issues makes it easy for the court to overlook the absence of the LG. The rule stated in Figueroa is actually quite weak. Apparently the marginalization of the LG will not result in reversal unless the inadequacy of the record requires reversal; in other words, the Appellate Division makes its own judgment, reading the dry record. as to whether the failure to recognize the LG’s powers as co-extensive with those of the attorneys for the parties impaired the proceedings. A per se rule (with exceptions for such errors as de minimis oversights) would work wonders in ensuring that trial courts do not impair the functions of LG’s, once assigned, in any manner.

Gast v. Gast, 50 A.D.3d 1189 (3d Dep’t 2008). LG advising parent. Here the Court apparently saw nothing wrong with the LG’s “admonish[ing]” the mother not to have her paramour move into the home.

Gatke v. Johnson, 50 A.D.3d 798 (2d Dep’t 2008). LG on appeal raising post-record facts. As often happens in custody cases, significant events had occurred since the order appealed from. The LG raised them, presumably in his brief, and the Appellate Division did not indicate any disapproval, but rather remanded for a new hearing due to the allegedly changed circumstances.

Hall v. Porter, 52 A.D.3d 1289 (4^th Dep’t 2008). LG not giving summation. “[F]ailure to afford the LG the opportunity to give a summation” was not reversible error because the LG “made her position clear to the court at the hearing”. Significance is unclear, because although the Court states that the LG was not seeking reversal on appeal, it does not state whether the LG made an issue or even asked for summation in Family Court.

Heslin v. County of Greene, 53 A.D.3d 996 (3d Dep’t 2008). LG in other courts. Here, when a subject child died, his Law Guardian was appointed administrator of the child’s estate and filed a wrongful death action. There is no indication that the Appellate Division had any problem with this expansive role.

In re Aaliyah Q., 55 A.D.3d 969 (3d Dep’t 2008). LG supporting or opposing a parent. The Court is dealing with a common complaint by one parent that the LG is opposing her or supporting the other parent. Removal of LG denied.

In re Alyshia M.R., 53 A.D.3d 1060 (4^th Dep’t 2008). LG failure to inform court of children’s wishes in TPR case. In this termination of parental rights (TPR) case, the LG failed to inform Family Court of the children’s wishes as required by the App. Div. 4^th Dep’t Guidelines, but the parents failed to preserve the error (the LG apparently did not appeal) and Family Court was not prevented from considering the children’s best interests. The ages of the children are not stated, but given that there were four children and a TPR takes time, it is most likely that at least one child was old enough to have wishes deserving of consideration.

In re B.G., -- A.D.3d – (1^st Dep’t Dec. 4, 2008). Continuing involvement of LG. This is an unusual variation of continuing involvement which courts occasionally order, contrary to the conventional view that an LG in a custody case is functus officio after the final order of disposition. That principle is modestly violated when a parent calls the LG with a problem after the case is over. Here, the continuing involvement ordered by Supreme Court in a divorce case was that the father would get to write four letters a year to the children, to be reviewed by the LG and mother. Apparently the LG did not object to this continuing nanny role, and the Appellate Division affirmed. The decision also referred to the decision below as having come “after hearing the testimony of the parties and the law guardian”, but hopefully that was just a syntax problem.

In re Brian L., 51 A.D.3d 488 (1^st Dep’t), lv. den., 11 N.Y.3d 703 (2008). LG application for medical treatment. The LG’s motion to direct the NYC Administration for Children’s Services (ACS) to provide sex assignment surgery (converting the child’s genitalia) was granted by Family Court but reversed by the Appellate Division. The important point for this program is that it was evidently accepted that it was part of the LG’s role to make such an application for a child with gender identity disorder, or more broadly speaking, to make applications for medical treatment for a client.

In re Brittany T., 48 A.D.3d 995 (3d Dep’t 2008). LG’s brief going dehors the record. In cases involving children, the appellate divisions do want to be apprised of significant developments to avoid a possibly meaningless decision, particularly involving such matters as changes in custody or placement. Here, the LG got at most a light wrist slap. In a footnote the Court notes that the LG’s statement in her brief that the child had lost a significant amount of weight in her last placement was outside the record, but itself commented that it was “not unmindful of the fact that her weight and dietary habits while in respondents’ care had not been, to say the least, ideal.”

In re Damien P.C., -- A.D.3d – (1^st Dep’t Dec. 11, 2008). LG favoring one parent. Another case rejecting a challenge by the disfavored parent.

In re Garrett D., -- A.D.3d --, 867 N.Y.S.2d 620 (4^th Dep’t Nov. 14, 2008). Something improper about talking to a custodial grandparent? There seems to be an implication here that it could be improper for the LG to discuss strategy with or obtain information from a parent (here actually a grandparent having temporary custody). The Court rejects the objection, but only on the grounds that (1) the objection was not preserved, and (2) the LG’s discussions with the grandfather were not “legal advice.” (Comment: While there are other perils in giving legal advice to someone who is not a client, it would not appear that another party would have standing to object, or, as here, to move to remove the LG.)

In re John H., -- A.D.3d – (3d Dep’t Nov. 20, 2008). Discovery. The Dep’t of Social Services, petitioner, was subject to an order to compel both production of documents and the deposition of a DSS caseworker discovery after noncompliance with the LG’s notices therefore, but the contractual placement agency must be dealt with as a nonparty. The proceeding was a continuing one from initial placement to permanency (viz., adoption), and therefore normal discovery rules applied, not special provisions for pre-action discovery.

In re Kaseem J., 52 A.D.3d 1321 (4^th Dep’t 2008). Child conflicts. The meaning of the case is unclear; the Court saw no problem with a possible conflict due to differing interests of the children because it found that the LG represented the children “individually.”

In re Maiea P., 49 A.D.3d 291 (1^st Dep’t 2008). LG making recommendations OK. The Court referred to the “recommendations” of the LG without any apparent disapproval. (Comment: People have criticized the use of the word “recommendations” as being inconsistent with the LG’s new role as strictly an advocate, just as the use of the term “best interests of the child” has been made much more difficult for LG’s, but unfortunately people have not worked out what LG’s should be saying instead. The problem arises in particular when the parties to a custody or neglect case are ready to agree on a stipulation or a consent finding, respectively, and the LG has to be heard. Since neither he nor his client is a party it is not clear how he can join in a stipulation.)

In re Richard UU, -- A.D.3d – (3d Dep’t Nov. 20, 2008). LG for child in placement can be ignored in new JD case. In this juvenile delinquency case, the child already had an LG by virtue of being in placement with DSS on a non-delinquency matter. When a charge arose of molesting the foster parent’s daughter, DSS brought the child to the police for questioning without notifying the LG. The Court affirmed denial of suppression of the child’s confession.

In re Tiajianna M., 55 A.D.3d 1321 (4^th Dep’t 2008). Ex parte interviewing of child by DSS. Because DSS caseworkers are not attorneys, they are not affected by rule prohibiting communication with represented parties. They can interview the child without the LG’s involvement. However, this ruling could be dictum because the LG had consented to the interviewing as part of an ACD in this neglect case.

Kristi L.T. v. Andrew R., 48 A.D.3d 1202 (4^th Dep’t 2008). Keeping the same LG. When the parties came back to court for later proceedings Family Court appointed a different LG because one parent had objected to reassigning the prior LG. The Court disapproves, in view of the provision of FCA §249(b) that the court should reappoint the same LG “to the extent practical and appropriate.” (Comment: the statutory language could lead to abuse, that is, to the preferential appointments, but reported cases do not indicate such a problem. Also note that a particularly important application of the statute is where a case is transferred from Family Court to Supreme Court or vice-versa; it operates both to prevent the use of preferential LG lists and to discourage forum shopping.)

Labanowski v. Labanowski, 49 A.D.3d 1051 (3d Dep’t 2008). LG’s on support issues. Noting the exclusion of support cases from the list of cases in which assignment of LG’s is required, FCA 249, LG’s have assumed that they should not be heard on support issues when they arise in cases in which they have been assigned, only occasionally in Family Court but routinely in Supreme Court divorce cases. The LG in Labanowski had abstained on the child support issue in Supreme Court, undoubtedly based on this theory. The Appellate Division reversed, removed the LG who had not weighed in on the support issue, and complimented the appellate LG for taking a position. The only possible limitation on the impact of this case is that the Court stated that the issues in the case “implicate a child’s right to adequate support” (actually possible total suspension of support), which might be read as distinguishing it from more incremental disputes, and the support issue appeared in conjunction with estrangement of the children from the father. The Court did not, however, state such limitation or indicate its awareness that its ruling could induce LG’s to demand the right to be heard on child support issues generally. (Comment: if the ruling stands for the proposition that LG’s in Supreme Court cases must advocate for their clients on child support issues, then it would raise equal protection concerns, because of the fact that custody/visitation and support are dealt with in the same case in the same part in Supreme Court but in different parts with different docket numbers on different dates before different triers of fact in Family Court.)

Manfredo v. Manfredo, 53 A.D.3d 498 (2d Dep’t 2008). Written summations are not reports. All attorneys filed written summations after the Family Court custody trial. One parent apparently objected to the LG’s summation. Without using the “R” word, the Appellate Division ruled that there was nothing improper with the LG’s summation, probably meaning that it did not constitute a prohibited report.

Minner v. Minner, -- A.D.3d --, 867 N.Y.S.2d 601 (4^th Dep’t Nov. 14, 2008). In camera. Much as in the case of assignment of LG’s (see, e.g., Figueroa v. Lopez, supra), it is discretionary whether to conduct an in camera or Lincoln (Lincoln v. Lincoln, 24 N.Y.2d 270) hearing, but the Appellate Division will not hesitate to find an abuse of discretion and order one. On the other hand, an unnecessary in camera will probably never be held to be an abuse of discretion. Here the Court remands, at least in part to have a Lincoln hearing.

Naomi C. v. Russell A., 48 A.D.3d 203 (1^st Dep’t 2008). Repeating child’s statements in court. The LG is criticized for stating the position of the child, in court, on a motion to dismiss the petition apparently for failure to state a cause of action or some other facial insufficiency. The criticism does not appear to be limited to the nature of the motion, however, because the Court goes on to state that the LG must not make himself a witness, citing rule 7.2. (Two comments are warranted here. First, a Family Court Judge is not necessarily being ignorant if he asks the position of a child or for other factual information while determining a motion to dismiss. While it cannot affect the determination of the motion if the court is compelled to decide it, the court might want to suggest either to the petitioner that she withdraw the petition without prejudice if it looks unlikely to succeed upon refiling, or to the respondent that he withdraw the motion because the petition can be refiled and the parties need to have a resolution of their dispute. Second, because temporary orders do not require full evidentiary hearings, one would expect the rules to be somewhat relaxed at preliminary appearances or conferences. Of course, if the petition is dismissed there would not be a temporary order, but the parties would be back in front of the same judge with the same problems soon enough.)

Potente v. Wasilewski, 51 A.D.3d 675 (2d Dep’t 2008). Position of the LG. A case that demonstrates that the traditional view of the LG is not completely extinct. The Appellate Division affirms the granting of a motion to dismiss a petition for visitation, without a hearing (but with an in camera), stating as one ground “the position of the attorney for the child, who had been involved in the case for several years.” (Comment, but not criticism: to see the unusualness of the statement, try changing the word “child” to “mother” in the sentence.)

Stewart v. Stewart, -- A.D.3d --, 867 N.Y.S.2d 623 (4^th Dep’t Nov. 14, 2008). Summations are not reports. Probably just a garden variety disgruntled parent challenge, but the Court ruled (suggesting rather inconsistent arguments on the part of the parent) that the LG had taken an active role and that the LG’s summation was not a report to the court.

Valenti v. Valenti, -- A.D.3d – (3d Dep’t Dec. 11, 2008). LG’s to be taken seriously. The Family Court Judge, who had been somewhat dismissive of the LG, was criticized as “cavalier” (a term used primarily during racing season at Saratoga). It is also interesting that, contrary to the disapproval of the First Department in Naomi C., supra, here the Third Department recited without disapproval “as indicated by the Law Guardian, the oldest sibling expressed his desire to live with his younger brothers….”

-o0o-

Note on use of abbreviation “LG”: The abbreviation is used for convenience. Different cases used the competing terms “Law Guardian” and “Attorney for the Child[ren]”, and a few used both, but the cases using the term “Law Guardian” were more numerous.

Return to Table of Contents

Last updated January 19, 2009

Links to other sites, or links to this site from any other sites, do not imply any endorsement of, or relationship with, such other sites.