As a divorce attorney on Long Island, I’ve seen that child custody is one of the most contentious of issues in a divorce in Nassau County or Suffolk County courts. If custody of your unemancipated child(ren) is a contested issue during your divorce, chances are the judge assigned to your matter will appoint an attorney to represent your children, otherwise known as a Law Guardian. During your Long Island Divorce the Law Guardian has one purpose and one purpose only – to represent your children.
The Law Guardian’s Role in a Contested Long Island Child Custody Case
When meeting with a Law Guardian, he or she will speak to your children privately, although at times he or she will request to speak with you and your spouse as well. If your children see a therapist or attend school, the Law Guardian may also request to speak with those individuals to obtain additional information. However, once your children turn 18, neither you nor the Court can order them to live with either you or your spouse.
The Law Guardian plays the most important role in matters where parents are unable to agree with each other as it pertains to custody and visitation of their unemancipated children. In these cases, the Law Guardian’s goal is to shield your children from being placed in the middle of a nasty divorce battle between you and your spouse.
If your case proceeds to trial in Nassau County or Suffolk County court on the issue of custody, the Law Guardian will call witnesses and state his or her case just the same as your divorce attorney. However, the point which he or she will try to make may be different from that of your attorney – the Law Guardian will need to show that custody with one parent over the other is in the best interests of the child.
Can the Law Guardian’s Opinion Outweigh that of the Child’s Parents?
In some instances, parents will settle the issue of child custody and visitation without a trial. This is done by a Custody Agreement on Consent, meaning that both parents consent to the terms set forth therein. Naturally, one would assume that due to this the Court or the Law Guardian cannot appeal the agreement. However, the Second Department case of Velez v. Alvarez, which was decided on June 26, 2015, held that a Law Guardian may appeal from an order of custody on consent.
In Velez, the parties entered into a custody agreement on consent which provided that the parties would have joint legal custody of the unemancipated children. In the event the parties were unable to reach an agreement, the Mother would have final decision-making authority. However, this order was entered over the objection of the Law Guardian, and therefore, the Law Guardian had the right to appeal from said order.
The Court noted that although “the paramount concern in any custody or visitation determination is the best interests of the child, under the totality of the circumstances”, it cannot enter an order of custody “based upon controverted allegations without the benefit of a full hearing.” Velez v. Alvarez, 129 A.D.3d 1096 (2d Dep’t 2015). The Law Guardian felt the custody agreement entered into between the parties was not in the best interests of the children involved, and therefore, when the agreement was entered against his wishes, he appealed it. On appeal the Second Department found that the Family Court did not have sufficient facts in its possession to “render an informed and provident determination as to the best interests of the subject children.” Id. Therefore, the case was remanded to the Family Court for further fact finding inquiries.
How to Avoid Law Guardian Appealing Your Custody Agreement?
This case likely causes discomfort in the minds of many parents going through a divorce on Long Island. However, your Long Island divorce attorney should be equipped with the knowledge necessary to know how to prevent this type of outcome. First and foremost, any time there is an issue of custody your attorney should seek for you to be put on the record and for the judge to conduct a hearing. This way, any determination is based upon your sworn testimony, and not simply motion papers. Additionally, your Long Island divorce attorney should be prepared with witnesses whom he or she may call to testify on your behalf if need be. Because the law states there must be a hearing before a custody determination, it is in your best interests for your attorney to insist on a hearing being performed in your matter.
Questions About Child Custody and Visitation on Long Island?
See this page to learn everything you need to know about Child Custody and Visitation on Long Island.
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