The Child’s Lawyer – The Role of the Law Guardian

The role of the child’s lawyer, also known as the law guardian is very confusing, not only to parents, but the judges, lawyers and even to the law guardians. Recently, the role has been somewhat clarified by the passage of a new code of conduct for New York lawyers.

Under New York law, the judges in Supreme Court and Family Court can appoint a lawyer for children in child custody cases, or cases involving the safety of the child. The law guardian or lawyer for the children (the terms are interchangable, however, “lawyer for the child” is now preferred), is, quite simply the children’s lawyer. Where each parent has a lawyer to represent them, the court insures that the child also has a lawyer. This reason is that children’s interest may be different from that of one or both of the parents.

The classic example is the custody fight. Both parents want custody, and therefore it is clear that their interests are opposite. The next question is what is the interest of the child? Is it better for the child to be with the mother or the father? This is where the lawyer for the child steps in. S/he represents the child’s interest. No longer is it a two sided conflict, but a three sided one.

Lawyers for the child are also involved in orders of protection, neglect proceedings and matters involving foster care. In all instants, the lawyer for the child acts for the child’s interests.

The confusion about the law guardian’s role is whether she acts on behalf of the child or upon her belief as the best interests of the child. For example, what should the law guardian do if the child wants to live with the father, but the law guardian thinks that the mother is the best parent? Should she work to get custody for the father or the mother?

Should the law guardian blindly follow the dictates of the child client, regardless of age? If an abused 8 year old wants to return to the abuser, does the law guardian fight to enforce her client’s wishes, or fight to protect the child from an unwise decision?

The rule of thumb is that child up until age 12 have not real say in the matter. Child from 12 to 14 are listened to, and child 15 and over get their way. This is not written in any law or embodied in any judicial decision, but my perceptions of the situation.

But, as there is no law on the point, there is confusion on how the law guardian act. Hopefully, this will be answered on April 1, 2009, when the new rules of Attorney Professional Responsibility take effect. The rule which applies to this situation is 1.14 which says:

Client with diminished capacity

   (a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a conventional relationship with the client.
 
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.
 
(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

Under the new rule the law guardian can act contrary to the wishes of the child, if it appears that the child’s decision is harmful. So, of the child wants to live with the father, the law guardian can advocate to the court that the child should live with the mother.

Parental Alienation

Parental alienation is a big and important area of child custody cases. While many non-custodial many believe that parental alienation is occuring the question is what can be done about. Under the New York Domestic Relations Law, parental alienation can result in the reduction of child support, but more importantly it can result in the change of custody.

The New York Appellate courts have come to realize that parental alienation is harmful to the child, and therefore could warrant a change of custody. The First Department, in Osbourne v. Regina S., 55 AD3d 465 found that “the mother’s negative attitude and hostility toward the father, as evidenced by her maligning of the father in the child’s presence, the filing of unsubstantiated reports of abuse and neglect against him, and encouraging the child to lie to support her false claims, failed to demonstrate a willingness or ability on her part to facilitate and encourage a close and optimum relationship between the child and his father.” As a result the court changed custody from the mother to the father.

The key to the decision is the understanding that parental alienation is not in the best interests of the child. In the case of Zeis v. Slater, 57 AD3d 793, the Second Department specifically stated that parental alienation is not in the child’s best interests. The court agreed with the Family Court that the mother should lose custody. The court found that the “mother deliberately interfered with the father’s visitation rights, and moreover, denigrated the father in the child’s presence. This conduct is so inconsistent with the child’s best interests that it per se raises a strong probability that the mother is unfit to act as a custodial parent.”

In fact, the courts are so concerned with parental alienation that not only may a custodial parent lose custody, but may also lose unsupervised visitation. In Stewart v. Stewart, 56 AD3d 1218, the court found that as a result of the parental alienation, that supervised visitation was in the child’s best interest.

The point for the custodial parent is to avoid at all costs saying anything that is derogatory about the non-custodial parent to the children. The point for the non-custodial parent is that you can fight back against parental alienation.

Adultery Myths And New York Divorce Law

In order to get a divorce in New York, you must prove marital fault. New York recognizes adultery as one ground to obtain a divorce. However, adultery, as a basis for divorce in New York is misunderstood. In this post, I will try to dispel some of the myths surrounding adultery.

Not a week goes by without someone asking me one of the following questions: (1) If my spouse cheated on me, do I get the house? (2) If my spouse cheated on me, do I get the kids? (3) I don’t have to pay maintenance if my spouse cheated on me, right? and (4) If my spouse cheated on me, can I have him/her arrested?

The law regarding adultery has changed with the times. A hundred years ago, the answer to the above questions would have been an unqualified “YES”. But, divorce laws in New York have changed to reflected the looser morality we inherited from the 1960s.

While we use the term “marital fault” in New York law, it has a very narrow application. It only refers to whether you can get a divorce, not what happens in the divorce. Getting a divorce is easy, the court dissolves the marriage. The hard part is resolving the issues of property and children. These issues are generally unaffected by allegations or proof of adultery.

Let’s first look at property. Under the equitable distribution law, the court is not interested in who destroyed the marriage. The court instead is looking at the length of the marriage, and the property acquired during the marriage. Generally speaking, the court will divide the property in half, regardless of who was at fault. Adultery, by itself will not adjust the scale.

But, what if the cheating spouse spent money on the paramour? That is different. Assume the cheating spouse bought the paramour jewelry. The money used was presumably marital money. That money was wasted and must be returned to the marital pot for distribution. In one case I had, the husband broke an investment plan and deposited it in the girlfriend’s bank account. The judge attached the account and brought the money back.

Child custody and visitation are more problematic because of the emotions involved. The paramour is seen as the cause of the termination of the marriage. So, it is not uncommon to for the innocent spouse to demand custody on a “morals” issue. Or the innocent spouse will demand that the children not be exposed to the evil paramour.

Until the sexual revolution of the 1960s, adultery was evidence of poor morals, and could be used to secure child custody. Now, that is simply not the case. Adultery is no longer the controlling factor in custody. Adultery can come into play if the paramour is an “inappropriate” person, such as a convicted felon or a sex offender. Adultery can also come into play if it is part of a pattern of an unstable lifestyle. For example, going out every night, leaving the children unattended, and then coming home in the early hours, coupled with adultery could be used as evidence of an unstable lifestyle.

The area of greatest conflict involves the presence of the paramour around the children. If the custodial parent is the cheater, the innocent spouse generally cannot understand why he/she can co-habitat around the children. The argument is that the environment is “morally unsafe.” “How can I teach my child what is right, when he sees a negative moral example everyday?” As I stated above, the courts don’t get into assessing morality. If the child has a separate bedroom, many judges will not issue any order prohibiting the paramour from being in the presence of the children.

However, I have had some circumstances where the court has ordered that visitation shall not occur in the presence of the paramour. Generally, this occurs in particularly nasty breakups, and the law guardian and/or the forensic psychologist believe that it is not in the interests of the children to be in the presence of the paramour. There is no hard and fast rule, but will depend on a case by case basis.

Maintenance is generally unaffected by adultery. This may seem like a harsh rule. “She/he cheats on me and I have to pay?” The problem comes from the statutory basis for maintenance. The purpose is to rehabilitate the non-working or underworking spouse into the work force. The societal goal is to create a self-sufficient person who will not be a public charge. So, the issue of adultery generally does not play into an award of maintenance.

Finally, no one goes to jail for adultery anymore. Only the military prosecutes for adultery.

Child Custody Cases and the Cost

My father, God rest his soul, had a sign over his desk which read “In the law, nothing is certain but the expense.” He told every client that walked in that the sign was not a joke.

That sentiment is doubly true for custody cases. Let me state up front: custody cases are expensive and there is absolutely no guarantee of success. In fact, I’m going to be adding that language to my retainers because no matter how many times and different ways I say it, someone will hear what they want to hear.

Let’s talk expense. The first thing a New York divorce or family court judge does when she hears the words “custody battle” is to appoint a law guardian. The law guardian is an attorney hired by the court to represent the interests of the child in the battle. Guess who pays for the LG? Not the court, the parties. The court could divide it 50/50, 60/40, or 100 percent to one party. It is based upon the financial resources of the parties, and the discretion of the court. I never predict how that will turn out. But, generally speaking the person making the most money will pay the most money.

In the average custody case, the LG can end up billing at least $15,000 and many times will bill more than that.

Next, the court will appoint a forensic psychologist to interview the parties, the child, and whoever is living with the parties. The average price tag for the report is $10,000. If the psychologist needs to testify at trial, expect another $7,000 to be added to the bill.

Before you even pay your lawyer, you can be out of pocket $25,000.

You must also pay your lawyer. I was involved in a particularly nasty custody battle that lasted three years, had numerous courts appearances, several appeals and ended in a three week trial. The legal cost to my client was in excess of $120,000.

So, what do you get for all the money you shell out? This is not a game, the person with the most money is not guaranteed to win. There are many factors that must be weighed and considered by the court. Ultimately, the decision is in the discretion of the court. Any lawyer who claims to be able to predict the result of a custody battle is a fool or liar.

And as tough as a custody battle is, motion to change custody is even tougher. The courts require that there be a strong showing that the custodial parent is unfit, and it is in the best interests of the child to change custody.

In future posts, I addresses some the factors that the courts consider. But, be advised, custody is expense, emotionally draining, and unpredictable. Before you walk this path, consider your options very carefully. Think it through, discuss it with your family and lawyer. Then chose wisely. In the end, it is your decision whether to take this path.

National Guardsman Loses Child Custody Due to Deployment

Regular readers know I that don’t slam or criticize judges, I merely explain the law. Well that changes with this posting. I am furious at a decision by a panel of appellate judges in Albany who rubber stamped an ill-advised decision to penalize a mother for the crime of being a patriotic American. The case, Diffin v. Diffin involves a mother who got custody of her son as part of a divorce settlement in 2000. On April 2004, the mother got mobilized and went to Iraq.

The father moved for a change in custody, and the mother plead the Servicemembers Civil Relief Act. The Family Court stayed the action, but granted temporary custody to the father until the mother returned from Iraq.

When the mother returned, the Family Court awarded custody to the father. The appellate division, third department affirmed the decision. The reason was that because her military service, she has a less settled life. Therefore, it was in the best interests of the child to change custody to the father.

The Court tried to claim that the military service had no impact on the decision, but then they go on to find that her military service was the primary factor. To put a fig leaf on the decision, they talk about how in the past year the child is in a stable environment and that it would be disruptive to uproot him. But, in the end of the decision the anti-military bias shows through: “although the disruption caused by her deployment was not her fault, this record does not demonstrate that Darrell’s best interests would be enhanced by a order a change (i.e. a return to his mother) in his present physical custody.”

Justices, Cardona, Peters, Spain, Carpinello and Lahtinen, should be ashamed of themselves for this blatantly anti-servicemember decision. Justices Cardona and Spain bear particular responsibility as they are prior military.

There are a large number of single parents in the military and particularly in the Guard and Reserves. The reason we have the Servicemember’s Civil Relief Act (SCRA) and the Servicemembers Employment Re-employment Rights Act (USERA) is to fulfil a public policy of maintaining the Guard and Reserves. Patriotic Americans who go the extra step and serve our country should not be punished by small minded people who are shielded by sacrifices that our military members are making every day.

Here, we have a Guardsman who did not shirk from her duty. She did not make excuses. When the call came, she raised her hand and went into a war zone. The thanks that a grateful nation bestowed upon her was to take her son away from her.

To add insult to injury the knife was wielded by Presiding Justice Cardona, a Viet Nam veteran.

I encourage you to contact your congressman to get an amendment to the SCRA. We need a provision that prevents courts from considering military service to change child custody.

Custody during Mobilization or Deployment

Military divorces have unique problems and issues. Perhaps, the most common issues revolve around custody and visitation. A military divorce must address issues of cross and out of state visitation, travel and visitation in foreign countries and the issues created by mobilization and deployments.

One frequent custody and visitation issue involves the mobilizing or deploying parent. The marital combination could involve two active duty parents, mixed active and reserve/guard parents, two active/guard parents or only one military parent.

The classic case involves dad in Germany and mom in the New York. Mom has physical custody and dad has visitation. Mom gets orders mobilizing or deploying her to Iraq. Under her family care plan, she will give custody to her mother or sister. As far as the Army, Air Force, Navy, Marines and yes, the Coast Guard, Â are concerned, the mom has done her duty and can go. But, under New York law, there is a problem.

A second but related issue involves what happens after the parent with physical custody returns from deployment. Can she get her child back?

The starting point for these inquires is New York family law. Under both the New York Domestic Relations law and the New York Family Court Act, and subject to some very limited exceptions, no one has superior rights to custody of a child over the natural parents. Â Legally, the mother’s power of attorney granting guardianship to her mother is trumped by the father’s rights.

Under the first scenario, in the absence of a court order, the father can walk into grandma’s apartment take the child and walk out. And there is nothing Grandma or mom can do.

Now, let’s change the facts a little. Mom has a separation agreement, but not a court order. If dad takes the child he may be in violation of the agreement but will not be subject arrest for violating a court order.

Finally, assume mom has a court order of custody. Even though she’s in Iraq, dad can’t just take the child. He must go to court in order to gain custody.

As a lawyer I find that all three of those scenarios are messy. My solution is, typically, a military one: preplanning and prepositioning.

Any agreement or court order must contain provisions to cover the mobilization or deployment (I also include TDY as well) of the custodial parent. Generally, there should be a clause which states that the non-custodial parent has right of first refusal in any situation where the custodial parent is mobilized, deployed or on TDY. This will resolve this problem.

But, what happens, I hear you ask, if we can’t agree? Well, that’s why the guy in the black robes gets paid the big bucks. In the event the parties can’t agree, the judge will decide. Generally, unless it is unsafe for the child to be with the non-custodial parent, Grandma loses out.

Moving on to the second problem of what happens when mom returns home. This one is a minefield. There have been several judges around the country who have permanently changed custody from the military parent to the non-military parent. The reasons given by the courts are, and I find as military member, offensive. Basically, these judges believe that military service is incompatible with physical custody. There is a question in my mind whether this constitutes unlawful discrimination.

One way to try to avoid this problem is to specifically include in the divorce papers a clause which states that upon return, the custodial parent regains custody. I am not aware of any New York judge refusing to honor such a clause.

In fact, I had such a case before Justice Ross in Nassau County. My client was mobilized under Noble Eagle. Under the terms of the divorce papers she relinquished custody to the dad. When the end of her tour approached, dad made an application to change custody. Judge Ross did not grant the application and my client got her children back.

The real teaching point is that preparation and preplanning can go a long way to avoiding mobilization/deployment related custody problems.

Parental Alienation

Recently, Judge Richard Lawrence, Family Court, Nassau County, noted in Matter of FS-P v. AHR, published in the New York Law Journal on August 31, 2007, that “a court may suspend a non-custodial parent’s duty to provide child support after a finding that the custodial parent has willfully denied or interfered with visitation or has engaged in ‘parental alienation.’”

At issue in this case was whether the father could raise parental alienation as a defense before there was a support order. The father was seeking to invoke this defense to the mother’s request for an order of support. Judge Lawrence recognized that after an order is issued, the court can relieve the father of the responsibility if there is interference with child visitation. But, can the father raise it as a defense to prevent an order from being issued in the first place? In this instance, the Judge said it is a defense.

A couple of points: (1) If there is a support order in place, I’d strongly advise against stopping the payments if there is game playing on the visitation. As long as there is a court order, it must be obeyed. If there is game playing on the visitation, then the remedy is to go to court and ask to Family Court judge to suspend support.

(2) If there is are no orders of visitation or support, and there is game playing on visitation, please don’t get mad, don’t do something foolish. While you could try and rely on Judge Lawrence’s decision, the better option is just go to the Family Court and make out a petition for visitation.

(3) Parental alienation is a big topic and I’m leaving that for another post.

Child Visitation With Same-sex parents

A relatively new area showing up in New York family law is the parental rights of same sex couples. The general rule in New York is that only the biological parent has rights as a parent, and that a third party is a mere stranger.

There was a recent decision by Nassau Family Court Judge, Stacey D. Bennett, where a same sex partner was found to have the right to at least be heard by the court on the issue of custody. (The decision was published in the August 10, 2007 edition of the New York Law Journal, on page 29.)

The parties met, fell in love and moved in together. After several months, it was decided that Ms. L. would undergo artificial insemination. The parties agreed that if Ms. L became pregnant, Ms. H would assist in taking care of the child. It was undisputed that Ms. H took Ms. L to all her pre-natal visits and was present during the birth of the child. Ms. H even cut the umbilical cord. She assisted in changing and feeding the baby. Ms. L. testified that Ms. H did what a husband would do for a wife during the pregnancy.

After the birth of the child, Ms. L returned to work and Ms. H stayed at home to care for the child. The situation continued for several months until the relationship ended. Ms. L. then moved into a shelter but left her son with Ms H. It was agreed that Ms. H. would keep the child until Ms. L. found suitable housing. Under that agreement, Ms. H. brought the child to New York City, were Mr. L. was living several times for visits. During a visitation there was an argument over financial support. Ms. L. called the police and claimed that Ms. H. refused to return the child. ACS of New York City removed the child and he was ultimately placed in foster care.

Judge Bennett stated the standard law, that a third person does not have rights superior to the parents. The underlying rationale for this rule is that there is a presumption that it is in the child’s best interests to be raised by at least one parent unless the parents are determined to be unfit. She went on to note that the Court of Appeals has found an exception to this rule when it is in the best interests of the child and extraordinary circumstances exist. In determining whether extraordinary circumstances exist, the court should consider the length of time the child has lived with the non-parent, the quality of the relationship and the length of time the biological parent has allowed such custody to continue without trying to assume the parental role.

Judge Bennett then went on to explain that Ms. L. treated Ms H. as a parent to the child. Therefore, she decided that Ms. H. can at least make the argument for custody.

While the question of whether Ms. H. can get custody remains open, this case is interesting in that the court allowed for that possibility. This decision does not merely have implications for same-sex couples, but also for grandparents seeking to obtain custody of their grandchild. This is still an evolving area of the law. The courts have been cautiously pushing on the notation of what a “parent” is, while the legislature has been silent on the issue. Ultimately, the courts cannot carve out an exception and allow third persons the same rights as biological parents. Rather, that will be for the legislature to decide. In the meantime, we will continue to see these small exceptions created using the extraordinary circumstance rule.

Parental Alienation, Child Custody and Visitation

Custody and visitation issues can be the difficult to resolve. After the break-up of a couple, the custodial parent sometimes seeks to convince the child that the ex is a bad person who was responsible for the dissolution of the relationship. This parent can also seek to make the child feel guilty if they like the non-custodial parent, and enjoy visitation. The bitter custodial parent treats the child as betraying him/her for wanting to spend time with the non-custodial parent. This creates stress on the child, who becomes conflicted. The problem is made worse when the non-custodial parent then dumps his/her emotional baggage on the child as well. The child is caught in the middle of two feuding parents, each using emotional levers to influence the child. The result is a child who is hesitant to go on visitation, or a child who actively assumes the custodial parent’s position and comes to hate the non-custodial parent.This is a very unhealthy situation.

I became very interested in this issue recently, as I was to start a trial involving a 7 year long custody battle, where the child is only 7 years old. The law guardian pointed out that regardless of the outcome of the trial, we would, in all likelihood, be back in Family Court the following month on a new petition. A new approach had to be tried.

The New York courts have become increasing aware that some custody issues do not go away with the judgment of divorce or the order of custody. The parties cannot work past their anger and instead use the child as a weapon and tool to hurt the other. In that recognition the courts have been working to find solutions to this problem. A parent who is otherwise fit, can be found unfit if they interfere with visitation or if they seek to alienate the child from the parent.  While that may serve as a deterrent, it may also add fuel to the fire, and ratchet up the tensions. The result is that the child suffers more emotion harm.In a decision published a couple of years ago, Brooklyn Justice, Jeffrey Sunshine addressed this problem. Justice Sunshine was a divorce attorney for many years before he took the bench. He is a very smart and thoughtful judge who really works hard to resolve the issues and achieve justice between the parties. In L.S. v. L.F., Justice Sunshine was faced with a post-divorce action where the child was reluctant to visit her father. The standard solution of appointing a law guardian and ordering a psychological evaluation and ultimately therapy for the child did not bear fruit. When he spoke to the child in camera, Justice Sunshine came to the conclusion that the parental discord and the constant fighting over visitation issues was part of the larger problem. He then appointed a parenting coordinator. The role of the parenting coordinator, explained Justice Sunshine would be to “assist the parties in establishing regular visitation with the child…It is anticipated that the coordinator will meet with the parents and child bi-weekly at the beginning of the process…assisting the parties and the child in re-establishing meaningful parenting time.”In practical terms the parenting coordinator would oversee the visitations and provide a less confrontational forum for addressing concerns and visitation issues. Ultimately, the parties need to learn to work through their anger issues and learn to communicate. In the more acrimonious situations, it is not uncommon to see endless bickering over the most minor details of the visitation. I know of one situation where the father was an hour late bringing back the child, so the mother called the police. There is game playing on telephone visitation, such as the mother enticing the child away from the telephone with promises of ice cream. These types of petty and childish behavior lead to further court appearances and an emotional damaged child.While the parenting coordinator should not have to micro-manage visitation, sometimes it is necessary. In the more extreme situation, the parents would have to text message or leave voice mails for the parenting coordinating for every drop off and pick. This would remove the “he said-she said” element from the fight. In the more acrimonious disputes the parties’ recollection of events are so widely different that one wonders if they are talking about the same event. The oversight of the parenting coordinator could relieve that problem. Furthermore, if the parents know there is a third party looking over their shoulders, it might discourse the more outrageous conduct.In the end, the court is consistently seeking new and better ways to assist the child through the break- up of the parents. This is accomplished through a variety of tools to include therapy and oversight of visitation. Ultimately, the parents must realize that parenting time is a right of the child. A parent who allows their own bitterness to influence the child’s perceptions of the other parent is causing serious and long term emotional harm to their child. Â