Real attorneys for children? Wait and see

The other day Gov. Paterson signed a law that was widely seen as important for children who land in

The other day Gov. Paterson signed a law that was widely seen as important for children who land in Family Court. A lawyer appointed to represent such children will now be an “attorney for the child” rather than a “law guardian,” the idea being that a lawyer representing a child should be an advocate for his client just as much as a lawyer for an adult is, rather than someone who paternalistically “guards” the client’s best interests as interpreted by the lawyer himself, as is done for incompetents.

That sounds fine, but I am holding my enthusiasm in check. I have seen too much of court-appointed law guardians meekly acquiescing in their clients’ being wrenched away from their parents against their fiercely expressed will to believe things will change very dramatically.

Actually, the transition from “guardian” to “attorney” has been happening gradually over the past 10 years through the efforts of various commissions, including one appointed by former Chief Judge Judith Kaye and another led by Justice Edward Spain of the Appellate Division for this part of the state.

Judge Kaye’s commission declared that court-appointed lawyers representing children “must advocate on that child’s behalf as is required of any other attorney,” and, “The court should not ask an attorney for a child for a recommendation or a personal opinion.” Which is important, even if obvious.

A judge doesn’t ask a criminal defense attorney if he really believes his client is innocent. It’s understood that the defense attorney is there to advocate on behalf of his client to the best of his abilities. The judge doesn’t ask him what he privately thinks, and the defense attorney doesn’t say to the judge, “Well, your honor, he says he’s innocent, but between you and me he’s guilty as sin.”

But that’s what law guardians effectively do in Family Court, some of them. They will say with an air of resignation, “Well, they want to go home,” referring to a couple of kids who have been legally kidnapped out of their home by over-zealous caseworkers, but it’s perfectly clear that the law guardian doesn’t agree with the kids. Clear because he (or she) doesn’t in any way advocate for their going home. He (or she) doesn’t cross-examine witnesses, doesn’t present witnesses of his or her own, doesn’t offer evidence.

In the few cases I have observed in Family Court in Schenectady County and Schoharie County there is little practical difference between a law guardian and a potted plant, except that the law guardian is paid $75 an hour. (There are a couple of exceptions for whom I have high regard. I don’t mean all law guardians; I mean many.)

Will that change now that the statutory title has changed?

I asked Vincent Reilly, who served 15 years as Family Court judge in Schenectady County before being elected to state Supreme Court in 2000.

He said the law has always envisioned law guardians as true advocates for children, “it just wasn’t implemented that way, and the use of the word ‘guardian’ was one reason.”

Also, he suggested, it was convenient for Family Courts to rely on a recommendation from a law guardian. After all, if the law guardian was looking out for the interests of the child, how could a judge go wrong in following his advice?

I also asked Jack Carter, director of the law guardian program of the Appellate Division, Third Department.

He said. “This is not new; it’s been emerging over the last 10 years,” and he pointed to court rules that already state as follows:

“If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child’s best interests.”

Which is as clear as it could be, but which, alas, is followed by a loophole capacious enough to drive a truck through:

“When the attorney for the child is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child, the attorney for the child would be justified in advocating a position that is contrary to the child’s wishes.”

I have seen more than one child removed from his home on grounds of “imminent danger” when no such danger was anywhere visible, just as punishment of a parent, so I can well imagine how a court-appointed “attorney for the child” could interpret that little provision.

In the end there is little oversight, since Family Court decisions rarely get appealed and the news media has not much interest in the intimate matters that get adjudicated in Family Court, preferring instead matters criminal.

As a disclaimer, I of course recognize that very young children cannot reasonably be expected to have “considered judgment,” and I don’t know at what age we can expect that a child’s wishes ought to be respected. There is probably no exact cut-off age, though obviously a toddler wouldn’t qualify.

Anyway, now we have the proper nomenclature written into law, and I wonder: Will these renamed attorneys for children, rather than law guardians, become real advocates for their clients?

Will their role become more than the mere courtroom formality it is now?

Will they make a diligent effort to actually meet their young clients and talk to them to find out what they want rather than just show up in court at the appointed hour and sit like a lump?

I am prepared to be convinced, but I am not taking any bets.

Categories: Opinion

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