WHAT IS A LAW GUARDIAN?
By Sari M. Friedman, Legal Counsel
Fathers' Rights Association (NYS and Long Island)
The Law Guardian is usually appointed by the Court in
visitation disputes to serve as the child(ren)'s advocate. He/she is there to
represent the child's interests. The person chosen to act as the Law
Guardian is usually a lawyer who is experienced in custody matters.
Normally, the Law Guardian speaks with the child or children and may also
speak to either or both of the parents. The Guardian may also speak with
school personnel, a child's therapist, the forensic examiner appointed
in the case, or anyone else the Guardian considers appropriate to obtaining
relevant and necessary information to enable him/her to make a recommendation
to the Court on behalf of the child. If a child is too young to verbalize
his/her thoughts, some judges feel there is no purpose served by appointing
a Law Guardian. But there are others who do not agree and would appoint
a Guardian in any case.
The Law Guardian's Courtroom Role
At a trial, the Law Guardian has the right to call witnesses and to cross-examine
on behalf of the child. The Law Guardian's role is to assure that
the Court hears an unbiased view of what is in the child's best interest,
a view not colored by either parent promoting his or her own agenda.
The Law Guardian will frequently act as a buffer between two hostile parents
in an attempt to obtain a resolution that is in the child's best interest.
The most common criticism is that the Guardian frequently aligns him/herself
with one parent, losing objectivity and effectively becoming a second
advocate for one parent.
Another common criticism is that the Law Guardians appointed by the Court
are frequently less skilled and not as experienced as they should be.
Nor are they always mature enough to assess a child's well being.
In this writer's opinion, better Law Guardians have developed the skill
of listening to both parents, leaving neither one with a feeling of alienation.
The Law Guardian is the Child's "Attorney"
There continues to be some confusion over whether the Law Guardian's
role is to articulate the child's wishes, or to modify those wishes,
if necessary, by what the Guardian believes is in the child's best
interests. It is important in every case for the attorneys representing
the parents to insist that the Law Guardian clarify what the child maintains
he/she wants, and to what extent the Guardian is making a recommendation
contrary to the child's wishes, and if so, why.
A common and sometimes fatal mistake parents make in custody disputes is
to forget that the Law Guardian is, in effect, the child's attorney
and not their attorney. Your own attorney will keep your communications
with him/her confidential and will reveal only what is in your best interests.
Your own lawyer will work with you to present your arguments in the best
light. That clearly is not the same as the Law Guardian's role.
When speaking to the Law Guardian, you, as a parent should always put your
best foot forward just as you would before a forensic evaluator or the
Court. If you, even inadvertently, say something to the Law Guardian that
would be detrimental to your own best interests, it will be used against
you because the Law Guardian's role is to protect the child, not you.
What Should You Discuss With the Law Guardian?
In discussions with the Law Guardian, you need to give reasons you believe
your child's best interests are served by you be chosen the primary
custodian. Detail your positive contributions as a primary parent. If
the issue in your case is visitation and not custody, the rules are the
same. You need to explain why the visitation schedule you are suggesting
is best for the child.
In advance of meeting with the Law Guardian, discuss with your attorney,
the most appropriate way to address your strong, and your weak, points.
Concerns about the other parent may be discussed with the Law Guardian
but not in a denigrating way. You are pointing out the other parent's
negative in order to protect your child. Make it absolutely clear to the
Law Guardian that, in your mind, the child's best interest is of primary