Law Guardians

Divorce and related disputes can be a complicated and frustrating time for a family and in those cases where child custody and visitation are at issue, the roles of the various attorneys can get confusing- especially law guardians, who are appointed to represent children.

What is a Law Guardian?

A law guardian is a licensed attorney, who has special training and who is appointed by the courts to represent the best interest of a child or children. The law guardian serves separate from counsel for parents and offers an independent view for the court to consider.

Law guardians are common in many states, such as Michigan, New York and New Jersey. In states such as Virginia, the equivalent of a law guardian is a called a Guardian ad Litem.

Who are Law Guardians Appointed?

By operation of law, parents share equally the custody and care of their children; however, when relationships change, parents may not agree on basic things ivolving their kids. When parents disagree, they often file custody and visitation petitions with a court. In filing these petitions, matters involving where the child or children will live, go to school, and even the faith they may practice are part of their dispute. Instead of a judge deciding these issues based on a parent's representations alone, the court finds that a special attorney should be be appointed to protect and represent the child's interests and opinions. It is at this time, a court appoints a law guardian.

What is the Role?

In custody disputes, the law guardian has a very unique role. In this role, a law guardian is more than a defense attorney. They are investigator, evaluator and counsel who seeks to determine what is in the best interest of a child.

Law guardians are independent of the court and are not part of either parents' defense team. Law guardians hold attorney client privilege with their client and has to consider several things when determining what may be the best custodial situation for their client.

The law guardian can investigate school placements, consider the behavior of parents, and even weigh a child's special education or medical needs. Since a law guardian is also an attorney a law guardian can subpoena records, call witnesses and even offer a recommendation for the court to consider.

Distinguished between Guardian Ad Litem, Legal Guardians, and Court Appointed Advocates

In some states, Guardian ad Litem is an attorney who represents the interests of children in all matters such as custody, visitation, services needs, and even delinquincy matters. However, not all states have require Guardian ad Litems to be licensed attorneys. In Florida and South Carolina, a Guardian ad litem can be a court volunteer with special training in children's issues.

A legal guardian is a person, who has legal and sometimes financial authority to care for another person, sometimes called ward. A person who is a minor, disabled or incapacitated can have a legal guardian. In some states, an agency, such as social services or family services, can become a legal guardian. Legal guardians are not attorneys, but can filed petitions on behalf of their ward.

Also, many states have programs where court advocates assist the courts in making decisions. The common term used is called CASA (Court Appointed Special Advocate.) In many states, such as Virginia, CASA volunteers monitor cases involving children, who may have been abused or neglected. In others, CASA can serve as Guardian ad Litems. CASA are specially trained volunteers and most do not hold law degrees; however, many have experience in social work, mental health and education.

For more information on law guardians, check out the following websites:

http://www.courts.state.ny.us/ad3/lg/index.html

http://www.state.nj.us/defender/div_lawguardian.shtml