Appointment of Guardian Ad Litem in New York

What Is an Appointment of Guardian Ad Litem?

Background

“A guardian ad litem is appointed not to represent the ward's interests in any context in which they might conceivably be implicated, but for the far more limited purpose of appearing for the ward in ongoing litigation in which the ward's rights have been placed directly at issue.” (Haynes v. Haynes (1994) 200 A.D.2d 457, 463.)

“[I]n 2007, the role of the law guardian was changed by a newly-promulgated Rule of the Chief Judge (22 NYCRR § 7.2) that renamed the position ‘attorney for the child,’ and required those attorneys to ‘zealously advocate the child's position.’” (Venecia V. v. August V. (2013) 977 N.Y.S.2d 199, 201 citing 22 NYCRR § 7.2.)

General Information for Complaints and Motions

“The rule states that the attorney for the child must ‘consult with and advise the child to the extent of and in a manner consistent with the child's capacities, and have a thorough knowledge of the child's circumstances.’” (Id., citing § 7.2[d][1].)

“It further requires that the attorney for the child should be directed by the child's wishes after fully explaining the available options and making recommendations to the child, as long as the child is capable of knowing, voluntary and considered judgment.” (Id., citing § 7.2[d][2].)

“Only when the attorney is convinced that the child lacks the capacity for knowing, voluntary and considered judgment, or if following the child's wishes is likely to result in a substantial risk of imminent, serious harm to the child, may the attorney advocate a position contrary to the child's wishes, and even then the attorney must inform the court of the child's articulated wishes if the child wants the attorney to do so. (Venecia V. v. August V. (2013) 977 N.Y.S.2d, supra, at 201 citing § 7.2[d][3].)

Compensation for Guardian Ad Litem

“A duly appointed guardian ad litem is entitled to fair and reasonable compensation for his services (Matter of O'Malley, 286 App. Div. 869, 870), even where the result may be of no benefit to the ward (Livingston v. Ward, 248 N.Y. 193).” Haynes v. Haynes, 200 A.D.2d 457, 458 (N.Y. App. Div. 1994)

The Court’s Decision

“In New York State, even the youngest of children is entitled to have his or her point of view heard in cases involving custody and/or visitation. Pursuant to The Rules of the Chief Judge (22 NYCRR) § 7.2[d], an attorney for the child must zealously advocate a child's position where the child is capable of knowing, voluntary and considered judgment.” (K.G. v. C.H. (2018) 79 N.Y.S.3d 166, 177 n.5 citing The Rules of the Chief Judge (22 NYCRR) § 7.2[d].)

“The age of a child may inform the attorney for the child's conclusion regarding the child's capacity and the attorney for the child's duty to exercise substituted judgment.” (Audreanna VV. v. Nancy WW. (2018) 71 N.Y.S.3d 683 [attorney for the child properly exercised substituted judgment given children' ages, disabilities and the grandmother's hostility to the mother]; Matter of Hassina S. v. Nadia S., 59 Misc.3d 1202[A], 2018 N.Y. Slip Op. 50350[U], 2018 WL 1387612 [Family Ct., Monroe County 2018] [attorney for the child properly substituted judgment for a two year old]; K.G. v. C.H. (2018) 79 N.Y.S.3d 166, 177 n.5 citing The Rules of the Chief Judge (22 NYCRR) § 7.2[d].)

Documents for Appointment of Guardian Ad Litem in New York

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Caliber Home Loans, Inc. v. Sania S. Daniel, 17 Warner Ave Inc., Ashfaq Bhatti, People Of The State Of New York, James Webb UNKNOWN HEIRS of, United States Of America O/B/O IRS, Nassau County Clerk, John Doe document preview - page 1 of 8

EXPARTE ORDER (PROPOSED)

At an IAS Term of the Supreme Court of the State of New …

Case Name Caliber Home Loans, Inc. v. Sania S. Daniel, 17 Warner Ave Inc., Ashfaq Bh…