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Where the Buck Stops for Law Guardians

By Joel R. Brandes and Carole L. Weidman

New York Law Journal (p. 3, col. 1)
September 26, 1995

         THESE ARE BUSY DAYS in matrimonial courtrooms. Judges have 
     skillfully been using a 1993 court rule to aid them in sorting out 
     the complex issues of custody. Inspiring greater confidence in the 
     system and boosting efficiency is a part of the goal.
         Custody and visitation proceedings have as their objective the 
     best interests of the child. The child, however, is not a party to 
     the action and is normally not represented. A law guardian may be 
     appointed by the court to protect the interests of the child, or the 
     child may choose independent counsel. The court may also order the 
     parties and the child to submit to forensic evaluations pursuant to 
     Civil Practice Law and Rules Sec.3121(a) and Family Court Act (FCA) 
     Sec.251.
         Section 202.16 (f) of the Uniform Civil Rules for the Supreme 
     Court, enacted in 1993, provides that the court ``may appoint a law 
     guardian for the infant children, or may direct the parties to 
     submit to the court, within 20 days of the [preliminary] conference, 
     a list of suitable law guardians for selection by the court.'' 
     Section 202.18 of the rules provides that in any action or 
     proceeding tried without a jury to which Domestic Relations Law 
     Sec.237 applies, the court may appoint a psychiatrist, psychologist, 
     social worker or other appropriate expert to give testimony with 
     respect to custody or visitation and that the cost of such expert 
     shall be paid by a party or the parties to the action as the court 
     shall direct.*1
     
     Statutory Authority
     
         It has generally been held that a court has inherent authority 
     to designate counsel to represent children in custody cases and that 
     no statutory authority is necessary. In addition to such inherent 
     power, there is statutory authority to appoint law guardians under 
     FCA Sec.241, which provides that ``minors who are the subject of 
     family court proceedings or appeals originating in the family court 
     should be represented by counsel of their own choosing or by law 
     guardians  . . . .''
         FCA Sec.249 provides that in any proceeding in which it has 
     jurisdiction ``the court may appoint a law guardian to represent the 
     child, when, in the opinion of the family court judge, such 
     representation will serve the purposes of this act, if independent 
     legal counsel is not available to the child.'' This statutory 
     authorization to appoint law guardians in custody/visitation cases 
     under FCA Sec.249 carried over to the Supreme Court before the 
     enactment of the rules.*2 FCA Sec.241 specifies that law guardians 
     are ``counsel'' who ``help protect'' the children's interests.
         The Appellate Division has said*3 that the role of the law 
     guardian in disputed custody/visitation litigation has been to act 
     as champion of the child's best interest, as advocate for the 
     child's preferences, as investigator seeking the truth on 
     controverted issues or to recommend alternatives for the court's 
     consideration. The role of the law guardian appointed under the FCA 
     was to be the same as the role of independent counsel. Because FCA 
     Sec.242 requires law guardians to be attorneys admitted to practice 
     in New York they differ from guardians ad litem, who need not be 
     attorneys.*4
         In an earlier article*5 we commented that inevitably the 
     question will arise: Who will foot the law guardian's bill? Since 
     the enactment of the 1993 rule, judges, including Supreme Court 
     judges, are routinely appointing law guardians in custody cases, 
     ordering forensic evaluations and directing one or both of the 
     parties to pay the legal fees of the law guardian and costs of the 
     forensic evaluation.
         In many cases the judges are directing one spouse, often the 
     husband, to pay a retainer to the law guardian and pay him or her at 
     an hourly rate. This is particularly strange to most lawyers since 
     it is a huge departure from the past unwillingness judges have shown 
     in awarding advance retainers for counsel fees, pendente lite, to a 
     needy spouse.
     
     Directing a Parent to Pay
     
         The decision in Anonymous v. Anonymous,*6 decided this month by 
     Justice Silberman of the Supreme Court, New York County, is a sign 
     of the times. The court granted a law guardian's motion for pendente 
     lite counsel fees and directed the father to advance a $15,000 
     retainer to a law guardian selected by the children with the further 
     authorization granted to the law guardian to enter judgment against 
     the father should he fail to pay the award.
         The parties' children, dissatisfied with the guardian ad litem 
     appointed by the prior assigned judge, contacted the attorney after 
     seeing his name in a magazine. The attorney made application on 
     behalf of the children to be appointed as their law guardian. The 
     court granted the motion, appointed him as the law guardian and 
     ordered the father to pay the law guardians fee in the first 
     instance with a final determination as to a proper allocation of the 
     fee to be made by the trial court.
         The law guardian then moved for a $25,000 retainer pendente 
     lite, and the father opposed the motion on the ground that the law 
     guardian was ``not acting as a law guardian pursuant to the Family 
     Court Act because he was not independently selected and since he is 
     not acting as a neutral evaluator.'' The father also argued that the 
     law guardian should be paid at the statutory rate designated for law 
     guardians rather than the rate he was billing for his services and 
     that he had not submitted a detailed breakdown of the time he spent.
         It is hardly shocking that Justice Silberman confirmed that the 
     court has the authority to appoint the law guardian and that there 
     is no distinction between the role of a law guardian and the role of 
     an attorney individually selected by the children. Nor is it 
     surprising that the court rejected the father's argument that the 
     law guardian should be paid at the ``18-b statutory rate'' since 18-
     b has no bearing on the law guardian's fees because he was not 
     appointed pursuant to the 18-B assigned counsel plan.
         Eventually the courts will be confronted with the sobering 
     question of whether they actually have authority to direct a parent 
     to pay the fees of a law guardian, and if so, how and when. As we 
     see it, remedial legislation may be in order.
         The Supreme Court is limited by the provisions of the FCA and 
     Judiciary Law, leaving hardly a pebble upon which to build an 
     argument that the court has the inherent power to award counsel fees 
     to law guardians. Likewise, the Family Court is a court of limited 
     jurisdiction whose statutory authority is strictly limited and 
     construed.*7 Nor is redress simple. The Court of Appeals has held 
     that the Appellate Division cannot make substantive law (or 
     corrective laws for that matter) by enacting procedural rules.*8
         Once such awards are authorized, a procedure must be established 
     to provide the parties with the right to challenge the necessity for 
     and reasonableness of the fees, including the fixation of the 
     initial retainer. Law guardians should not be given greater rights 
     than those of the parties and their attorneys.
     
     The Appointments
     
         The statutory authority for the appointment of law guardians in 
     FCA Sec.243 (a) provides that OCA may contract with the legal aid 
     society for it to provide law guardians. FCA Sec.Sec.243 (b) and (c) 
     permit the appellate division to contract with any qualified 
     attorneys to serve as law guardians or to designate a panel of law 
     guardians for the family court. It provides that if the Appellate 
     Division proceeds under subdivisions (b) or (c), the law guardians 
     compensation is governed by Judiciary Law Sec.35 (3), which provides 
     that assigned counsel ``shall at the conclusion of the 
     representation'' receive compensation at a rate not exceeding $40 
     per hour for time in court, and $25 per hour for time out of court.*9
         The 18-b rates are the same, with the additional proviso that 
     compensation pursuant to FCA Sec.262 may not exceed $800. Judiciary 
     Law Sec.35 (3) also provides that no assigned counsel shall seek or 
     accept any fee for representing the person for whom he/she is 
     assigned without approval of the court, and whenever it appears that 
     ``such person'' is financially able to obtain counsel or make 
     partial payment for the representation, the court may terminate the 
     assignment or authorize payment to such counsel.
         In extraordinary circumstances the court may provide for 
     compensation in excess of the foregoing limits. Each claim for 
     compensation must be submitted for approval to the court which made 
     the assignment or appointment. After the claim is approved by the 
     court, it must be certified to the comptroller for payment by the 
     state, from the funds appropriated for that purpose.
         The New York Constitution provides in Article VI Sec.1 that the 
     Supreme Court shall have ``general jurisdiction in law and equity.'' 
     However, this refers only to the jurisdiction that we inherited from 
     England and the jurisdiction possessed by the supreme court of New 
     York colony on July 4, 1776.*10 In England, matrimonial matters were 
     dealt with solely by ecclesiastical courts and were part of its 
     ecclesiastical law, which we never adopted.
         Thus, jurisdiction of the courts of New York in matrimonial 
     actions is limited to such powers as are expressly conferred upon 
     them by statute.*11 The power of the Supreme Court over matrimonial 
     matters is derived solely by virtue of statutory grants of 
     authority. The statutory authority for counsel fee awards and 
     expenses is found in DRL Sec.Sec.237, 238 and 240, which authorize 
     counsel fee awards and expenses to spouses in matrimonial actions 
     but not to law guardians or forensic experts.
     
     
     notes
         (1) DRL Sec.237 provides for awards of counsel fees and expenses 
     payable by one spouse to the ``other spouse.'' 
         (2) See Seitz v. Drogheo (1967) 21 NY2d 181, 234 NE2d 209, and 
     Kagen v. Kagen (1968) 21 NY2d 532, 236 NE2d 475.
         (3) Koppenhoefer v. Koppenhoefer, 159 AD2d 113 (2d Dept., 1990).
         (4) See CPLR 1202.
         (5) Brandes and Weidman, ``The Role of the Law Guardian,'' New 
     York Law Journal, July 26, 1994, p. 3, col. 3.
         (6) NYLJ, Sept. 8, 1995, p.27, col.3, Sup Ct, N.Y. Co. 
     (Silberman, J.).
         (7) Borkowski v. Borkowski, 38 AD2d 752; Kagan v. Kagan, 75 AD2d 
     644. NY Const., Art. 6, Sec.13.
         (8) Gair v. Peck, 6 NY2d 97.
         (9) Jud Law Sec.35 (7) provides, in part, that counsel will be 
     compensated in accordance with its provisions whenever the supreme 
     court appoints counsel in a proceeding over which family court might 
     have exercised jurisdiction if it had been commenced there or 
     referred there, under circumstances which, if the proceeding were 
     pending in family court, it would be authorized by FCA 249 to 
     appoint a law guardian.
         (10) This jurisdiction was legislatively described in section 64 
     of the former Civil Practice Act.
         (11) Caldwell v. Caldwell (1948) 298 NY 146, 152, 81 NE2d 60, 64;
      Erkenbrach v. Erkenbrach (1884) 96 NY 456, 462; Walker v. Walker 
     (1898) 155 NY 77, 80, 49 NE 663, 664; Burtis v. Burtis, 1 Hopk Ch 
     557.; Ackerman v. Ackerman (1910) 200 NY 72, 93 NE 192; Griffin v. 
     Griffin (1872) 47 NY 134. Weicker v. Weicker (1967, 1st Dept) 28 
     AD2d 138, affd 22 NY2d 8, 237 NE2d 876; Seitz v. Drogheo (1967) 21 
     NY2d 181, 234 NE2d 209; Langerman v. Langerman (1952) 303 NY 465, 
     104 NE 857.
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Joel R. Brandes and Carole L. Weidman have law offices in New York City 
and Garden City. They co-authored, with the late Doris Jonas Freed and 
Henry H. Foster, Law and the Family, New York (Lawyers' Co-Operative 
Publishing Co., Rochester, N.Y.) and co-author the annual supplements. 
Harriet R. Weinberger, law guardian director for the Second Department, 
provided information for this article.