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Arielle Schacter

Arielle Schacter

Posted: February 23, 2011 11:30 AM

Guardian ad Litem, Law Guardian, Legal Guardian ... Who exactly are you?


Guardian ad Litem is a fancy legal term that is quite difficult to define. People may be confused and believe that it is a parent who is given custody; others may believe that it is a cross between a Guardian and a lawyer. The true definition of a Guardian ad Litem is murky at best. Through my research, I have come across countless names, definitions, and ideas on the role of a Guardian ad Litem with each contradicting the other.

From my own experience, I understand the frustrations that relate to the usage of the Guardian ad Litem. When my parents began their divorce in 2007, I was in the eighth grade. Within the first several weeks, I met my Guardian ad Litem and was so confused about what I would need a lawyer for. I wasn't the one getting divorced; my parents were! It would take writing this article to understand the role of a Guardian ad Litem.

In brief words, a Guardian ad litem is a fancy legal word that is synonymous with a Law Guardian--a lawyer appointed by a court to act in a lawsuit or a divorce case on behalf of another party, in this case a minor. When I first met my Law Guardian, I explained to her my situation, my desires and my dreams of how I wanted my life to be. My lawyer explained to me that it was her role to convey these desires to the Judge.

I never realized how complicated my life was going to become over the next two-and-a-half tumultuous years of my parents' divorce. I found myself lost in an ocean of confusion with no one to guide me. My situation at home had become complicated. I often communicated to my lawyer that I wanted less time with my father and she, my Guardian ad litem who is paid by my father, passed on to the Judge not my interests, but rather contradicted them with my father's and her wishes. Furthermore, I was faced with my lawyer no longer acting as a lawyer, but rather a parent, a psychiatrist, a travel agent and an enemy trying to hurt me every step of the way.

As a parent, my lawyer tried to decide where I shopped. As a psychiatrist, she diagnosed me as suicidal and told that I should be placed in an institution. As an enemy, my lawyer told me that "I would be responsible for my family going up in flames ... My mother lost $10,000 because of me ... I am using a giant ax to swat a fly ... [I was] not a sane person ... My father could institutionalize me." I am not suicidal, nor am I having suicidal thoughts; however, it is hard to prove such a thing when my lawyer tells the court that I need to be placed in an institution.

After one too many impossible conversations with my lawyer, I realized, after a year of filing complaints with the Bar Association and trying to learn what a Law Guardian is supposed to do, I still had no idea what the role of a Law Guardian is and nor did my lawyer. Clearly, they do not teach lawyers how to be psychiatrists in Law School. There is no legal training oversight; no one is watching to make sure the law guardian acts ethically. Also, if the problem at the end of the day is Person X, who also pays the bill for the lawyer, the lawyer may feel inclined to represent Person X rather than her client.

In order to deblur the fuzzy lines of the role of a Guardian ad litem, I decided to interview Janet Fink, The Deputy Counsel of the New York State Unified Court System to answer the questions that puzzled me:

What is the specific role/ job of a law guardian?
The specific role/ job of the law guardian is to represent the child's wishes and convey them to the court. The exception is if the child is unable to understand anything. Then the lawyer's judgment will be substituted for the child's. Another exception is when the child has "special needs." This is decided case by case. In 99% of cases the lawyer represents the child similar to a lawyer representing a client.

What age does a child no longer need longer need a law guardian?
There is a growing national trend, where a young person is beginning to be able to represent himself/herself in court. This is taken for granted in juvenile court. The age that a child should be considered unable to understand anything is approximately 3 or 4 to 7 or 8.

Can a law guardian make decisions?
No. The only exception is when the child is unable to understand anything and then the lawyer's judgment will be substituted for the child.

What oversight is there over the law guardian process - including recommendations and payment?
There are two forms of oversight on the law guardian processes in NY State. First, New York is divided into four departments; each department has an Appellate Court. Every Appellate Court has a law guardian program advisory committee, which screens the law guardians. Every year, the law guardian must be recertified. The divorce court will then appoint a law guardian for the child. Second, a law guardian may have a contract with Legal Aid Society or the Law Guardian Society, which hires, trains and disciplines lawyers on how to be a law guardian.

How can you ensure the law guardian is actually communicating/ representing the child's interest, if the child is not present in the court?
The law guardians are given training. If there is a problem, a parent may raise an issue; however, the other parent or the attorney may tell the court that the real problem is parent is trying to gain control of the child. This causes a problem since it is hard to separate a positioning-for-power argument from an actual problem.

How can a legal a guardian deem a child impaired - is there a test?
No, there is no test. It is decided case by case.

Can a law guardian advocate for what they believe a child should have, if the child does not want it?
No, it is the Judge's job, not the lawyer's job, to decide what a child should have, even if the child does not want it. The only exception is if the child is incompetent to make his/her own decisions. The lawyer's job is to assert the interest, not deem the child's interest.

If there is domestic violence, does they law guardian have a responsibility of communication the issues to the court?
A lawyer's personal ethics may not have any influence. First, if the child does not want the lawyer to tell the Judge, the lawyer cannot tell the Judge. A lawyer is not like a doctor who is required to report all incidences by law. Second, if a child is only three years old and there is child abuse, the lawyer should put the medical records before the court in the interest of the child's safety.

Should the law guardian be allowed give input to ACS during an investigation (because if you feel she representing X, she could downplay the issue)?
The caseworker will talk to the child personally to investigate. The only time they may talk to the lawyer is when they want information on the case from the lawyer.

How could a child terminate a law guardian if the child feels she doesn't represents him/ her and if the law guardian refuses to submit her resignation to the court?
A child may terminate their law guardian three ways. First, a child may write a letter to the Judge asking for approval on the resignation law guardian. The new lawyer, chosen by the Judge, will be paid by the State of New York. Second, the child can contact the Law Guardian director in his/her county and file a complaint and for a new law guardian. Third, the child can contact Legal Aid society and file a complaint. If hired by Legal Aid, it would say on their business card, "Legal Aid Society."

In the future, there should be clearer guidelines on the role of the Guardian ad Litem. Curently, there is a movement in the Legislative Assembly to change the name from Law Guardian to Lawyer of the Child in hopes of ending the misunderstanding of the role of the Guardian ad Litem.

There should be clear rules on how to define a child who is "impaired," rather than being case by case. Does "impaired" mean that the child is too little, unable to walk, unable to hear, has a mental illness, has autism? By having a blury definition of what it means for a child to be impaired, the lawyer may try to overule the child's wishes with his/ her own judgement and then hide behind the child's "impairment."

The rules should be deblurred, so everyone involved can understand the rules better. How can I ensure that law guardians, such as my lawyer, will understand their role, so that they do not overstep their bounderies, like my lawyer does?