Relates to the representation of children; replaces the term "law guardian" with the term "attorney for the child" to more accurately reflect the attorney's role

F rom the testimony at the hearings and the written submissions received, it is clear that there exists a misconception that a law guardian plays a neutral role in these adversarial proceedings....

The attorney for the child is not a mental health professional, a mediator, a fiduciary or, most importantly, an arm of the court....

The Commission reiterates that at all times during the proceeding, the attorney for the child is subject to the same rules of good lawyering and professional responsibility applicable to any attorney in a civil proceeding or action, and must represent the client within those bounds.

Report of the Matrimonial Commission (Feb., 2006), at pps. 17,18,40.

Our Family Court Advisory and Rules Committee and the Statewide Advisory Committee on Attorneys for Children have joined the Matrimonial Commission in embracing this recommendation. Accordingly, we have drawn this measure to amend the CPLR, the Executive Law, the Judiciary Law, the Family Court Act, the Public Health law and the Social Services Law to substitute "attorney" or "counsel" for "law guardian."

New York State's tradition of affording legal representation to children in a variety of proceedings is long-standing and nationally recognized. Its Family Court Act, enacted in 1962, was cited by the US Supreme Court in its seminal decision in Matter of Gault, 387 U.S. 1 (1967), which required counsel in juvenile delinquency proceedings and equated its role with counsel in criminal cases. However, almost from its inception, the ambiguous term "law guardian," although defined in section 242 of the Family Court Act as an attorney, has created debate and confusion. The term suggests a role that combines functions of the attorney-advocate with those of a guardian ad litem, functions that are inherently incompatible. This has fostered uncertainty not only among children's lawyers but also among other participants in family law proceedings, including judges, parents, and parents' attorneys, on such fundamental issues as attorney-client confidentiality, ex parte communications and the impact of a child's preferences on litigation goals. The result has all too often been misunderstanding and clashing expectations about the actions and intentions of the child's lawyer, adding needless complexity and confusion to cases involving children.

In proposing this important language change, we continue a practice already begun by the Legislature. Both chapter 626 of the Laws of 2007 and chapter 576 of the Laws of 2008 use the term "attorney for the child." Further, shortly after the Matrimonial Commission report, rule 7.2 of the Rules of the Chief Judge was promulgated, which also used the term "attorney for the child" and clarified the role as unquestionably that of an attorney. See 22 NYCRR §7.2. Along with rule 7.2, the Administrative Board of the Courts approved the "Summary of Responsibilities of the Attorney for the Child," outlining the essential elements of effective legal representation. Finally, appellate courts have continued the trend toward a change in terminology. In Naomi C v. Russell A., 48 A.D.3d 203 (1st Dept., 2008), for example, the Appellate Division, First Department, referred to "Law Guardian (now called Attorney for the Child)."

Clearly, the time has come for a comprehensive legislative change of title, a change that will provide a more consistent understanding of the function of the child's attorney and remove a major, persistent source of confusion about this vital role.

This measure also would correct a decade-old error with respect to the appointment of attorneys for children in voluntary foster care placement proceedings. Although section 249 of the Family Court Act was amended in 1999 to require such appointments and such appointments have become routine, the references in section 358-a of the Social Services Law to these appointments as discretionary were never changed. See L. 1999, c. 506. This measure would take care of this oversight.

This measure, which would have no fiscal impact upon the State, would take effect immediately.

2009-10 LEGISLATIVE HISTORY :

Senate 5461-A (Sen. Schneiderman) Referred to Codes Assembly 7805-A (M. of A. Weinstein, Scarborough) Passed; Ordered to 3rd Rdg., Cal. 525

Footnote

(1) Established by former Chief Judge Judith Kaye in early 2004, and chaired by former Appellate Division Justice Sondra Miller, the Commission was charged with examining every facet of the divorce and custody determination process and recommending reforms to reduce trauma, delay and cost to parents and children impacted by that process.