In A Custody Dispute, Who Will Protect The Children?

In A Custody Dispute, Who Will Protect The Children?

What Is A Law Guardian and Do I Have to Have One?

It is not unusual in a contested divorce that parents fight over who will have custody of the children. Custody comes in two flavors: legal and physical. Legal custody includes decision making; physical custody governs the primary residence of the child(ren).

In New York courts resolve custody and visitation disputes between parents by determining what is in the best interests of the child. Each party to the litigation may retain their own attorney. But who will actually speak for the children? A law guardian is an attorney who is specifically appointed by the court to represent the children in such disputes. The thought is that the child’s independent interests ought to be represented but, as a minor, the child is not capable to advocate his or her interests alone.

Law guardians have several roles in the case. They speak directly both to the child and the parents. The law guardian may also speak with a child’s therapist, teacher or guidance counselor, coach, or other individual immersed in the child’s life. This type of “investigation” helps the law guardian recommend to the court what is in the best interests of the child. If the child is old enough to express a preference, the law guardian may also communicate the child’s wishes to the court. (As a child matures the child usually can express his or her interests with greater clarity to the court, and courts will take such fact into account.)

The law guardian is requested to undergo specific state-mandated training. Further, there are guidelines to which they are required to adhere. Nevertheless, attorneys and litigants often believe that law guardians have a difficult time staying impartial, and favor the parent with the greater power of persuasion or charm. Additionally, any minor child (but teenagers especially) may desire to be with one parent over another regardless of what is actually in that child’s best interests.

Does the law guardian’s participation ensure a perfect process? Certainly not. To date, however, it is the best process that New York’s courts have been able to formulate.

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    Image source: Child in a swimsuit holding a basket of clams, probably Washington State (circa 1930) by Gorst, Vern C., from University of Washington at Flickr Commons

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