The Law Guardian Can Provide an Advantage in Your Custody Case

In a high conflict divorce case, custody is usually hotly contested. You and your spouse each have a point of view about where the child(ren) should live and how you should share decision-making. Your attorney and your spouse's attorney will present evidence and make arguments about why that parent should have primary physical custody, and possibly legal custody as well. This creates a two-person race. However, strategic custody cases will use a law guardian.

What Is a Law Guardian?

A law guardian is an attorney appointed by the court to represent your children in the custody case. They are sometimes also called a guardian ad litem or attorney for the child. Children are not a party in the custody case, but because the entire case is about them, a law guardian is appointed to make sure their interests are communicated to the court and protected. 

The judge chooses the law guardian. and each county in New York maintains a panel of qualified, trained attorneys to take on this role. In some instances, the law guardian's fees are paid by the state, but in a high net worth case, the parents are generally expected to pay the fees. 

The law guardian is tasked with assessing the case and appearing at every court appearance to provide the court with a third viewpoint. The law guardian has the opportunity to question witnesses presented by the parents' attorneys and to call witnesses of their own, as well as to make open and closing statements. 

If the children will do an in-camera (private) interview with the judge, the law guardian will accompany them for this. In some cases, mainly if the children are old enough (such as with teens) to form an opinion about custody, the law guardian takes the position the children request. In all other situations, the law guardian does an investigation and decides what they believe is in the best interests of the children and advocates for that.

How the Law Guardian Impacts Your Case

The law guardian can be the wild card in your case. It's imminently clear what positions you and your spouse will take, but the law guardian can be unpredictable. Their opinion carries a lot of weight with the judge, particularly if the law guardian is someone who is respected in the legal community and has handled many cases before that judge in the past. 

The law guardian is often considered to have the inside track on what is actually happening inside the family because they generally interview not only the parents and children, but may also speak with teachers, educators, other family members, and health care professionals involved with the children and make home visits to both homes. Because of this, the court pays careful attention to questions the law guardian asks and witnesses they call. 

If the law guardian supports your position in the custody case, there is a strong chance you will win. In the reverse, if the law guardian opposes your position, there is a strong chance you will lose. The law guardian changes the stakes in your case from a one against one debate to a two to one opportunity. Because of this, it's imperative that you do everything possible to positively influence the law guardian and convince them that your position in the case is the appropriate solution. 

Once a law guardian is appointed in your case, talk with your attorney about how to strategically work them. Find out what information your attorney thinks is important for you to share and information about which you might wish to be more circumspect (but NOT dishonest). You can be prepared by developing an approach in advance.

How to Appeal to the Law Guardian

Your interactions with the law guardian are crucial to the outcome of your custody case, so creating a constructive relationship is key. You absolutely need the law guardian to see and agree with your point of view of the case, but achieving that requires a delicate touch. First and foremost, it is essential that you are honest with the law guardian. 

They have the ability to investigate you and your family thoroughly, and you can be certain any untruth will be uncovered. It is also necessary for you to be friendly, polite, calm, and helpful in all of your interactions. Treat the law guardian as an ally. Make yourself available to them at all times. 

That being said, you must be strategic in how you work with the law guardian. You don't want to appear as if you are acting (do not rehearse), but you also must not appear as if you don't care. Find a happy medium in which you thoughtfully share why you think you should have custody and the concerns you have about the other parent while offering details that support your position. 

Be certain to make it clear you believe the other parent has an important role in your child's life, and no matter what, that you plan to nurture and support that relationship. Make it clear you have your child's best interests at heart above all else. Best interests are the determinative words in a custody case. 

Give the law guardian access to your child for private interviews. Provide the law guardian with any information they request from you, after confirming with your attorney that doing so is the right path. Let them see your home and meet whomever you live with. Be cooperative, and do not adopt an adversarial attitude. Be well-informed about your child, their schedule, and any special needs or concerns. It is helpful to gather information about your child's needs and provide it to the law guardian, but avoid presenting anything that might feel like a PR campaign. 

Mistakes to Avoid with the Law Guardian

It can be tempting to think, particularly if you're paying their fees, that the law guardian works for you. Don't make the mistake of trying to tell them what position to take. Your law guardian functions independently and answers only to the judge. Adversely, do not dismiss them as unimportant to the case. They may not come across as high-powered or dominant, but the law guardian has many ways to make their opinion known, and the judge is tuned into all of them.

It's important not only that you avoid mistruths to the law guardian but that you make it clear to your children that they should be forthright as well. Children should be encouraged to be open and honest with the law guardian without a parent as the puppet master in the shadows. Attempting to guide them as to what to say can backfire.  

It's tempting to spend all of your interaction with the law guardian denigrating the other parent. While you do need to share pertinent negative information, it's important to spend a significant amount of time talking about yourself, your relationship with your child, your involvement in your child's life, and your plans and goals for your child's future. Give the law guardian a full-bodied impression of your family that highlights your role and sheds light on your spouse's parenting drawbacks. Try not to appear vindictive, overly angry, resentful, or ruthless when you discuss your spouse.

Skirting law guardian visits or dismissively answering questions will only harm your case. The law guardian may likely ask you difficult or uncomfortable questions. Evasiveness is a warning sign to a law guardian. 

Developing a constructive relationship with the law guardian takes time and attention, but it is well worth the effort since it will likely have a positive impact on your case. 


Dror Bikel

Dror Bikel founded and leads Bikel Rosenthal & Schanfield, New York’s best known firm for high-conflict matrimonial disputes. A New York Superlawyer℠ and twice recognized (2020 and 2021) New York Divorce Trial Lawyer of the Year, Dror’s reputation as a fearsome advocate in difficult custody and divorce disputes has led him to deliver solid outcomes in some of New York’s most complex family law trials. Attorney Bikel is a frequent commentator on high profile divorces for national and international media outlets. His book The 1% Divorce - When Titans Clash was a 5-category Amazon bestseller.

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