Law guardians: the voice of the child in family court

When you and your spouse make the decision to divorce, you each have the ability to voice your concerns and advocate your rights in court either personally or via your attorneys. Your minor children won’t have the same opportunity under normal circumstances, so if disputes arrive over custody and visitation matters, a law guardian may be appointed to look out for them and advocate their best interests.

The role of a law guardian is established in statute. Family Court Act (FCA) § 241 states that minors involved in a Family Court proceeding should be represented by either an attorney they choose or by a law guardian appointed by the court. Law guardians are usually appointed from resources like the following:

• A panel of attorneys designated by the local jurisdiction
• A legal aid society
• A private attorney (by appointment of the Appellate Division)

If a law guardian is appointed for your children in New York State, then he or she is mandated to both represent the children’s wishes and strive for an outcome that is in their best interests. They are also required to provide the court with all information necessary to make the right decision for the children, such as:

• The child’s needs and development
• The quality of the relationship with his or her parents
• Each parent’s ability to take care of the child’s physical, emotional and social needs

To obtain this information, a law guardian will speak to different parties. They may include:

• The children (if they are old enough to verbalize their thoughts)
• One or both parents
• School personnel such as teachers and guidance counselors
• Any therapists treating the children

In addition to custody and visitation issues, the law guardian will address any orders of protection concerns that may exist. Family Court judges are required to consider the existence of domestic violence within a family and how it affects the children. If the parents are antagonistic toward each other, then the guardian may also act as a buffer and try to help them achieve a mutually beneficial resolution.

If you are seeking custody of the children, then you need to make it clear during meetings with the law guardian that their best interests will be served if you are the custodial parent. If you are suggesting a visitation schedule, then the same rules apply: you should explain why the schedule you are proposing is best for the children. Although it is acceptable to express concerns about your former spouse’s parenting ability, avoid doing so in a negative or denigrating way. The goal is to protect the children, not vent about the other parent.

If a law guardian has been appointed for your children, then your New York divorce attorney can advise you on the best way to answer their questions and work with them to achieve the ideal outcome for the children. Divorce is a difficult time for young ones especially, and the law guardian’s duty is to facilitate a conclusion that benefits them the most. If you have questions about the divorce process in New York State, then contact Eskin & Eskin, P.C. Our attorneys are highly experienced and understand the importance and role of a law guardian. Call 718-402-5204 \to learn more and set up a free consultation. Visit www.EskinAndEskinLaw.com to review your options in divorce.