Scott L v. Bruce N

• Decision Date: 25 August 1986
• Citation: 509 N.Y.S.2d 971,134 Misc.2d 240
• Parties: In the Matter of SCOTT L, Petitioner, v. BRUCE N, Respondent.
• Court: New York Family Court

Page 971

509 N.Y.S.2d 971

134 Misc.2d 240

In the Matter of SCOTT L, Petitioner, v. BRUCE N, Respondent.

Family Court, City of New York,

New York County.

Aug. 25, 1986.

Tarnow & Frank by Herman Tarnow, New York City, for petitioner.

Wallman & Kramer by David Pugh, New York City, for respondent.

Society for the Prevention of Cruelty to Children by Mary Clarke, New York City, guardian ad litem for the children.

DECISION ON MOTION

SARA P. SCHECHTER, Judge:

Respondent father in this custody dispute moves inter alia for appointment of a law guardian for the children. At the initial court appearance the court had assigned the New York Society for Prevention of Cruelty to Children, hereinafter "SPCC", as guardian ad litem for the two children, ages seven and nine, but did not assign a law guardian pursuant to Family Court Act section 249. Since the appointment of a law guardian in a custody proceeding is discretionary with the court (F.C.A. § 249), the court must decide whether such representation would add in any meaningful way to that already being provided by SPCC.

A child who is the subject of a custody proceeding may require a variety of services: investigation of the family's circumstances, mediation of the dispute when appropriate, communication of age-appropriate information concerning the litigation, moral support and legal representation during the litigation. From county to county these needs are addressed in various ways, depending on the resources available in a particular locality. The probation department, the Juvenile Rights Division of the Legal Aid Society, 18-B panel attorneys, social services agencies and children's advocacy groups are often utilized in various combinations.

In New York County, SPCC is often assigned by the court in custody proceedings because the agency, which employs field investigators, court liaisons and attorneys, offers all the aforementioned services in a coordinated fashion and is, moreover, a statutorily constituted child protective agency, with authority to file petitions pursuant to Article 10 of the Family Court Act, should the investigation uncover evidence of child abuse or neglect. (F.C.A. § 1032). ¹

Although New York statutes mandate neither a "guardian ad litem " nor a "law guardian" in custody cases, recognition of the child as a person rather than chattel, requires that the child's position be distinguished and asserted independently of the battling adults. O'Shea v. Brennan, 88 Misc.2d 233, 387 N.Y.S.2d 212 (Sup.Ct., Queens Co., 1976); Borkowski v. Borkowski, 90 Misc.2d 957, 396 N.Y.S.2d 962 (Sup.Ct., Steuben Co., 1977); Matter of Marilyn H., 100 Misc.2d 402, 420 N.Y.S.2d 445 (Fam.Ct., N.Y.Co., 1979); Foster and Freed, Child Custody and the Adversary Process: Forum Conveniens? Vol. XVII No. 2, Fam.Law Q. 133 (1983); Eitzen, A Child's Right to Independent Legal Representation in a Custody Dispute, 19 Fam.Law Q. 53 (1985). The question is not whether, but rather, how to make the child's voice heard in the proceedings.

Although in some cases the child's point of view will emerge sufficiently in the investigations performed by court-appointed probation officers or psychologists, in most cases it is preferable, often essential, to appoint a representative for the child who can participate fully in all stages of the litigation process. ² Among the various jurisdictions which have recognized this need there is no consensus as to what to call the child's representative, nor is there even agreement concerning which functions--investigative, advocacy, etc.--go with which label. (See Eitzer, Id., and Foster and Freed, Id., for a summary of the diverse statutes.)

The term "guardian ad litem " is not statutorily defined in New York. Classically a guardian ad litem for one under a disability functions as the litigant would function were it not for the disability. Where the disability is infancy, therefore, the guardian ad litem does what the child would presumably do if she were an adult--select, retain and supervise counsel, gather factual information, and generally assist counsel in the preparation of the case. (See R. Horowitz and H. Davidson, Legal Rights of Children § 3.03 (Family Law Series, 1984)). In custody cases, there has traditionally been an association of the investigative function with the role of guardian ad litem. (See Braiman v. Braiman, 44 N.Y.2d 584, 591, 407 N.Y.S.2d 449, 378 N.E.2d 1019 (1979) where the court recommends appointment of a guardian ad litem "who would be charged with the responsibility of close investigation and exploration of the truth....")

The term "law guardian" is defined only as "an attorney admitted to practice law in the State of New York." (F.C.A. § 242). The law guardian's functions are to provide assistance of counsel to help protect the "interests" of minors who are the subject of family court proceedings and "to help them express their wishes to the court." (F.C.A. § 241). That the fulfillment of this role often requires some factual investigation is obvious. It is equally obvious that when the child subject of the proceeding is very young, the function of the law guardian can differ little from that of the guardian ad litem: "In some cases involving children incapable of considered judgment, the lawyer must facilitate full presentation of adequate and reliable evidence, essentially remaining neutral as to the outcome, but filling critical gaps in the case as portrayed by petitioner and respondent so that the court can make a more informed judgment." Practice Note: In the Matter of Jennifer G., Vol. 11 No. 3 J.R.D. Newsletter 15, 18 (March 1985). Where the case involves a young child, therefore, and where the law guardian has access to investigative services, or where, as here, the guardian ad litem can readily provide an attorney, the service rendered to the child by either will be essentially the same.

The question remains whether there is a significant distinction in the type of legal representation provided by the two types of representatives in a custody case involving older children. SPCC contends that it is the proper function of the guardian ad litem to advocate for the child's best interests, whereas the law guardian is said to be ethically bound to assert the child's wishes, even when they may be at variance with the best interests. ³

The Juvenile Rights Division of the Legal Aid Society does take the position that the "best interests" of the child are properly left to the determination of the court, while the "interests" which the law guardian is charged by F.C.A. § 241 to protect "may be quite distinct from what the court ultimately adjudges to be in the child's best interest." Id. at 16. That a law guardian may properly form and assert a position wholly divergent from that ultimately articulated by the trial court or an appellate court is a proposition which this court heartily endorses. It does not follow, however, that the child-client should dictate what that position will be.

The extent to which the child's wishes should influence the formulation of the position must vary according to the maturity, intelligence and emotional stability of the child in question. Where the child is a teenager of reasonably sound...