What Is a Law Guardian?

By Sari M. Friedman, Legal Counsel
Fathers' Rights Association (NYS and Long Island)

In New York, a Law Guardian is usually appointed by the Court in custody and 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.

"Legal Guardian" Definition

According to NYCourts.gov, a legal guardian is "the person appointed by the court who has the legal right to make decisions for another person." A legal guardian makes decisions on behalf of their "ward," who is unable to make legal decisions for themselves due to being a minor or lacking the "cognitive or communicative capacity" to do so.

If necessary, legal guardianship can become permanent if the caregiver has shown competency in providing for the child. While the child can still keep family connections, this allows for stability and peace of mind.

What Does a Guardian Do?

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 a Law Guardian?

In discussions with a 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.

Conclusion

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 importance.