Attorney for the Child / Law Guardian
In most custody / visitation cases (and many other cases relating to children), the trial court will appoint an Attorney for the Child (or children). In New York, such an attorney can be appointed in a divorce action in Supreme Court or in a Family Court matter. In Family Court cases in Nassau County and Suffolk County, the Law Guardian is appointed without charge to the parties. In a divorce case, the fees of Attorney for the Child are paid by the parties. If a case is settled without litigation, such as by way of mediation, a Law Guardian is not appointed.
This attorney will meet with the child and advocate for the desires of the child. The title of “Attorney for the Child” is a new title; until recently, the Attorney for the Child was referred to as the “Law Guardian.”
The Attorney for the Children does not advocate for what the attorney believes to be in the best interests of the child. Instead, the Attorney for the Child voices the child’s wishes and desires.
The Law Guardian will meet with the child and the parties to the action. Additionally, the Attorney for the child may meet with and anyone other relevant person involved in the child’s life such as doctors, therapists, siblings, other family members or teachers. The decision as to whether to meet with these people is solely in the discretion of the Attorney for the Child and there is no obligation to do so.
If the case eventually requires a trial, the Attorney for the Child will participate in the same way as the other attorneys. The Attorney for the Child can call witnesses, introduce evidence, and cross-examine any witness. Even on appeal, the child or children are entitled to be represented, pursuant to Family Court Act § 1120.
Although the Attorney for the Child does not make the ultimate determination as to custody or visitation, judges will often adopt the Attorney for the Child’s recommendations. As a result, it is tremendously important to maintain a good relationship with the Attorney for the Child.