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I'm asking for a change in custody and the law guardian did not visit my home when I have my child. Is this normal?

Rochester, NY |

The law guardian visited the mothers home first and reported to me that the child hid behind her and did not talk. The law guardian then had me come into her office. The child is 4 (almost 5) and has told me he would like to spend more time at my house. At a minimum I would like to get to as close to 50/50 parenting time as possible and allow mother to keep primary residency. I feel like the entire system is working against me and doesn't want to implement much change. This makes little sense to me since the physical and psychological needs of a 5 year old are very different from a 1 year old, which is how old he was when the original order was put into place. My attorney thinks this is standard practice and that the law guardian report is done and they won't come to my house.

If the attorney for the child is free to represent their client how they see fit, then what quality controls are in place to ensure that they are adequately represented? Obviously the child in most cases is unable to express that they are not happy with their representation and to request a new attorney. In my case the child has expressed to both me and his mother that he would like to spend more time with me, but the law guardian is not aware of this as far as I know.

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Attorney answers 5


An attorney for the child is not a surrogate judge to the family court judge, nor should s/he be treated as one. The one in your case is possible imposing more of her views than the child's if the child is not expressing her preferences, but if that's not the case, she should be advocating the child's wishes. A professional AOC must ethically voice the child's opinion, even if at odds with her own. Some do a great job, I have seen, and some not so great in that respect.

If you found this "helpful" or "best answer," please click it with my appreciation. My response is for educational purposes and does not constitute legal advice nor creates an attorney client relationship which requires all the details and a personal conference.


The attorney for the child (law guardian) does not have any duty to go to either home. Their only duty is to meet with their client. While many would feel it necessary to see the child with both parents when the child is so young to try to have a better understanding of their needs, desires, and best interests, the attorney for the child is free to represent their client how they see fit. You cannot require that they go to your home.


Agreed with the other attorney. Further, some times (not every time, but some times) the guardian does not waste time at one party's house since they have no concerns about that party. Sometimes the less a guardian or judicial officer asks, the better.

Any answer given is an opinion based on facts presented and does not constitute legal advice.


The child's attorney is not required to meet with either parent or to visit either of your homes. The only obligation the child's attorney has is to meet with their client, your child. The attorney for the child coming to your house is not relevant for purposes of your potential custodial change. At any hearing on the issue of custody, you can always present photographs of your house, if you think that has a bearing on the outcome of the judges decision after a hearing. You are also not required to embrace the opinion and report of the child's attorney. If you don't agree what the recommendations of your child's attorney, then ask for a hearing on your petition. Alternatively, if you and the child's mother agree that the child should spend 50 percent of his time with the both of you, then enter into an agreement changing the schedule so that it works out that way. Perhaps its more of a child support issue then a custody issue for the mother, if she is rejecting a 50/50 shared parenting schedule despite the child's wishes. Look at Baraby v. Baraby, 250 A.D.2d 201 (3rd Dept. 1998) for the interplay between a 50/50 custody split and child support.


I agree with the previous answers. The attorney for the child probably went to the mother's home to interview the child because s/he felt that it would be a more relaxed atmosphere for a young child. Here in NYC, the court will sometimes ask CPS to do an investigation and report in order to get information on the homes of the parents. Some attorneys fro children will not go to a home because it puts them in the position of being a witness if they observe something that they feel compelled to report.

As a general proposition, the system does not "work against" either parent. The court really tries to do what is in the child's best interest. Sometimes things just seem unfair from a litigant's perspective. My biggest problem is that too often the AFC will accept the words of a child that s/he doesn't want to visit with the non-custodial parent, without probing deeper to see if the child is being coached to say that.

The best thing is to not discuss the case with the child or try to pressure him one way or the other. The truth (almost) always come out.

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