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.

To obtain a Family Court order of protection, the petitioner must allege that their spouse has engaged in a family offense. Family offenses are defined in section 812 of the New York Family Court act. A family offense is an act:

which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault between spouses or former spouses, or between parent and child or between members of the same family or household

Reference must also be made to New York Penal Law section 240.26 which defines harassment:

1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; or

2. He or she follows a person in or about a public place or places; or

3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.

Recently, Judge Conrad Singer, Family Court, Nassau County, rendered a decision in Lizbeth M v. Stephen M., where he was asked to determine what conduct constituted a family offense. The wife had obtained an order of protection against the husband and the husband obtained an order of protection against the wife. Both parties asked Judge Singer to dismiss the other’ss order of protection.

Both parties accused the other of using offensive and foul language. The wife claimed that the husband called her a “f***ing whi***e pig, bitch and f***ing c**” and then approached her in a manner leading her to think that he would hit her.

The husband claimed that the wife called him an “a**hole and loser” and would “give him the finger.”

The court found that the husband’s alleged conduct constituted a family offense but not the wife’s. But, why?

Judge Singer found that the husband’s alleged behavior “was meant to harass, annoy or alarm the wife and approaching her in a threatening manner was a threat to subject her to physical contact.” Further, the name calling, he found, fit into the statutory definition found in New York Penal Law section 240.26. On the other hand, he found that the wife’s alleged conduct did not arise to the level of a family offense.

At first blush, this result may seem contradictory. However, I believe that the Judge was concerned about the element of threat. This is shown by his refusal to find a family offense where the husband was also accused of “whispering unpleasant things to her, alleging that no one would believe her and his job was to make her life a living hell.” Judge Singer found that these statements were merely unpleasant and crude but “for it to be a family offense or meet the definition of a criminal act, statements must be more than that.”

These result appears to be consistent with my experience. The courts are not so much interested in whether people are being rude and impolite. The concern of the court involves the safety, whether mental or physical of the petitioner.