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How does one ensure that the attorney for the children does their due diligence in representing the children?

Cortlandt Manor, NY |
Filed under: Family law

I feel that the attorney for my children is not representing them with due diligence. I do not believe this person can represent best interest without investigating the children’s complete circumstance and knowing what is true or untrue in the case that will decide their futures. To my knowledge this attorney has made no effort to verify any allegations including illegal activity, forgery, & perjury, manipulation, fear mongering & parental alienation.

I feel that this attorney is biased to the children remaining in their current location overlooking the fact that my spouse does not reside there as claimed. This means that the children are being raised by a third party instead of their parents. This attorney seems perfectly comfortable relying on affidavits and evaluations, making court appearances & collecting fees rather then exhorting any effort to truly determine what is in the children’s best interest and how best to represent them.

I have read Adopting Law Guardian Standards and The Chief Judge Clarifies the Role of Attorneys for Children NYSBA Family Law Review… but they all seem vague.

Any advice would be greatly appreciated!

Attorney Answers 4

Posted

If you have proofs or evidence you will have the opportunity to present them. Provide the documentation to your attor ey to refute the assertions

The above answer does not constitute an attorney client relationship and/ or retention of counsel. This answer is based upon the facts presented and may change if additional information is provided. The rules of the Bar for New York State may require me to advise that this could be construed as attorney advertisement.

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Asker

Posted

I’m sorry I was not very clear. It is I who am making the allegations and I have supplied extensive evidence to my attorney, the children’s attorney as well as the psychologist assigned to my case. I would have thought that the children’s attorney and the psychologist would have considered them important enough to investigate and if deemed necessary report. My spouses plan seems to be to wear me down and run me out of funds which are not an issue for him as he is the son of a doctor. I might have a chance at trial but I am told by my attorney that the firm will not represent me at trial without more money which I do not have (I have already paid at least $26,000 & have an aprox 60,000 balance). Unfortunately this case will not settle for some very serious reasons meanwhile disingenuous negotiations take place and my spouses position is strengthen the longer the “status quo” regarding residency of my children remain unchanged. Alas they seemingly do not care enough perhaps because they deal with broken families every day and have become immune to the destruction of families, frustrated with the system or simply complacent and enjoy having their cases handed to them without any accountability strings attached. I apologize for my tone in the previous paragraph, it would seem that my spouses plan is working, I have exhausted all funds available to me including from my family (who are not wealthy) and am emotionally drained after 2 years and a month of this battle.

Posted

Very often once spouse thinks the law guardian is either biased toward the other spouse or not doing their job properly. Beware that Judges hear these complaints every day. You will need to make a compelling case in order to get the Judge to change the law guardian. Discuss this with your lawyer if you have one or retain one if you don't.

I am a former federal and State prosecutor and now handle criminal defense and personal injury/civil rights cases. Feel free to check out my web site and contact me at (212) 385-8015 or via email at Eric@RothsteinLawNY.com. The above answer is for informational purposes only and not meant as legal advice.

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Posted

I do not intend to try to have the attorney for the children changed as I do not feel it would make a difference, I think this is how they do there job. Young children, no accountability... It would only delay my case even longer. I want to know how to ensure the children are in fact being represented properly, there are issues that this person will not look into but just disregards as trivial. How does one do this?

Posted

First of all, have you sat down with the Attorney For the Child and made you concerns known to him or her? Have you furnished that attorney with the information needed to investigate your claims? If not, I suggest that you do so forthwith. If you have, then I suggest that you sit down with your attorney and discuss this particular issue at length (I.e. make sure all of your "ducks" are "in a row") before proceeding with a bias complaint against the AFC. Judges hear these types of complaints all the time. You will do your situation more harm than good if you rush to make this type of complaint without having done your due diligence first.

This answer does not constitute the establishment of an attorney/client relationship. It is a general answer based on, and expressly limited to, the information presented.

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Posted

Thank you for taking the time to respond! I have made these concerns known to the attorney for the children, my attorney and even the forensic evaluator. I have provided extensive evidence including having a court order vacated which my estranged spouse obtained via forgery and fraud, an investigators report regarding residency fraud, proof of passport and visa fraud and supplying them with a recording of my child screaming and crying in fear that I not "tell" about the manipulation and fear being instilled in him and much more. Nothing has been done; these issues are not taken seriously by anyone. As I cannot afford to run up more legal counsel and because a change in the attorney for the children would only prolong my case my hands seem to be tied and the longer the “status quo” stays in affect the more harmful that is to my case. Being that our unconstitutional family court system seemingly thinks that it is better suited to determine what is best for my children; I simply wish for these individuals to do the jobs for which they are paid that is protect my children’s best interest. I would like to be able to hold the assigned attorney for the children as well as the evaluator to accountability. Is there not a responsibility on their part? Is there any way of knowing that these matters I bring to light are looked into and if not is this not negligence?!?

Posted

Part of your confusion stems from a misunderstanding of the role of the Attorney for the Children. The Attorney is NOT an investigator, and thus has no duty to "investigate the facts." The Attorney is there to represent his/her clients, and thus as best as s/he is able to s/he should ascertain their position on the particular issues before the Court. Your attorney - in collaboration with you - should be gathering evidence and attempting to persuade both the Judge & the Attorney for the Child to come around to your perspective. In any event, if you would like a free, initial consultation, please feel free to contact me at my White Plains office - 914-468-0968.

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Asker

Posted

I understand that there may often be confusion as to the attorney for the children’s roll however I do not believe that I am confused; I have formularized myself by reading the Chief Justice’s clarification as well as ACF ethics and guidelines. Please see (4) of the Summary of Responsibilities of the Attorney for the Child drafted by the Statewide Attorneys for Children Advisory Committee and approved by the Administrative Board of the Unified Court System, The Appellate Division, Fourth Department also endorsed this summary. “(4) Conduct a full factual investigation and become familiar with all information and documents relevant to representation of the child. To that end, the lawyer for the child shall retain and consult with all experts necessary to assist in the representation of the child.” Also of interest is case law In Matter of Elaine M., [FN4] a neglect proceeding, the First Department stated that law guardians are "counsel" who "help protect" the children's interests. In Koppenhoefer v. Koppenhoefer, [FN5] the Second Department held that the Law Guardian "may 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 may serve to recommend alternatives for the court's consideration ..." So it would seem to me that there are cases where this appointed attorney could & should act as or hire or whatever an investigator or whatever it takes to know the true circumstances of the children especially when the children are of very young age. As I previously stated I have given much evidence supporting my claims and nothing has come of it, I have no way of knowing if they were even looked into or spoken to the children about if there is an appropriate way of doing that. As it is I do not know for what actual work this person is being paid other then to show up in court and proudly announce “Attorney for the children present”… So back to my original question

David Ivan Bliven

David Ivan Bliven

Posted

It is possible you are referring to an old reference, as the term "Law Guardian" has not been used since approximately 2007. Moreover, standards adopted by the Fourth Department are not necessarily relevant in the Second Department, where I assume your case is in. I have pasted below the current standards outlined in the New York State Bar Association's pamphlet "Standards for Representing Children: Custody & Visitation," but would caution that this is not necessarily binding in itself. As such, it remains in the discretion of the indvidual Attorney for the Children whether to do particular "investigations" & what methods s/he employs to do so. I would also reiterate my suggestion that you contact a Family Law attorney for a consultation on the issue. "C-2. Investigate. To determine and advocate for the client’s position, the attorney should conduct thorough, continuous, and independent investigations and discovery, which may include, but should not be limited to: (1) Reviewing the child’s court, social services, psychiatric, psychological, drug and alcohol, medical, law enforcement, school, and other records; (2) Reviewing the court, social services, psychiatric, psychological, drug and alcohol, medical, law enforcement, school, and other relevant records of any other parties in the case; (3) Reviewing the court files of the child and siblings, as well as any relevant social service, child protective and law enforcement files; (4) Contacting lawyers for other parties for background information; (5) Contacting and meeting with the parties, with permission of their lawyer; (6) Obtaining necessary authorizations for the release of information, or, where a release cannot be obtained, serving subpoenas for necessary records, such as school reports, child protective and social services records, and medical records pertaining to the child, as well as relevant criminal records, medical records, and mental health records pertaining to the parties; (6) Interviewing individuals involved with the child who may be relevant to the case, including school personnel, child welfare case workers, neighbors, relatives, school personnel, coaches, clergy, mental health professionals, physicians, law enforcement officers, and other potential witnesses; (8) Reviewing relevant evidence provided by the other parties; (9) Considering whether the child should be examined by a physician, a psychologist, or a social worker; and (10) Visiting the child’s present home and any proposed home, whenever the child’s attorney deems it appropriate."

Asker

Posted

I believe it is the term and roll of guardian ad-litem that is no longer used in NY state, the term law guardian is still used as seen in the second division 2012 adminstrarors handbook for attorney for children. But I agree that the term law guardian should not be used any longer to stop all the confussion... I have been dealing with a family law attorney however nothing is done about this problem. I cannot afford to switch attorneys and do not want my case delayed any further. Thanks again for responding. I guess the answer must be that there is simply no way of getting this person to do their job.

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