17 A.D.3d 10, 792 N.Y.S.2d 201, (2005) N.Y. Slip Op. 01766
In the Matter of George W. Redder, Appellant Vs. Mary Francis Redder, Respondent
Supreme Court, Appellate Division,
Third Department, New York
Appeal from two orders of the Supreme Court, Ulster County (Christian Hummel, J.), entered April 24, 2003 and May 13, 2003, and cross appeals from a judgment of that court, entered June 3, 2003, in an action for divorce and related relief. The first order directed the parties to refrain from consuming alcoholic beverages 24 hours prior to and/or during their custodial time with the children, and the second order directed the parties to pay the Law Guardian’s fee. The judgment granted the parties a divorce and awarded joint custody of the parties’ children.
Redder v. Redder, 17 A.D.3d 10, 792 N.Y.S.2d 201 (2005)
- Children rarely have the financial means to seek counsel of their own choosing so most Law Guardians are appointed from the Law Guardian Program, which is governed by a statutory and regulatory framework (see Family Ct. Act art. 2, part 4; 22 NYCRR part 835).
- To foster the goal of quality and independent representation for children in the vital position of Law Guardian (see Matter of Carballeira v. Shumway, 273 A.D.2d 753, 755, 710 N.Y.S.2d 149 , lv. denied 95 N.Y.2d 764, 716 N.Y.S.2d 38, 739 N.E.2d 294  ), attorneys who seek to serve in such capacity must apply, be screened by a court, undergo training and meet various criteria (see generally 22 NYCRR part 835), and they are governed by the pertinent standards regarding compensation (see Judiciary Law § 35; 22 NYCRR 835.5)
- With respect to compensation, while the statutes and regulations speak directly to a procedure for payment from the state (see Family Ct. Act § 248; 22 NYCRR 835.5), there is no specific statutory or regulatory scheme for direct payment of an appointed Law Guardian by a parent or parents (see generally Brandes, Compensation and Law Guardians, N.Y.L.J., July 28, 1998, at 3, col. 1).
- The lack of parameters for a direct-pay system creates the potential for issues about the integrity of the appointment process in such situations (which often pay no attention to the statutory caps on compensation for assigned counsel), draws into question the independence of the Law Guardian, and raises concerns about fundamental fairness to all children regardless of the economic status of their parents.
- We have previously stated, albeit in dicta, that “Law Guardian costs shall be payable by the [s]tate” (Lips v. Lips, supra at 717, 725 N.Y.S.2d 763).
- We acknowledge that resolution of this issue is susceptible to more than one reasonable view (see Matter of Plovnick v. Klinger, 10 A.D.3d 84, 781 N.Y.S.2d 360 ) and there are policy arguments supporting different feasible approaches.
- However, until the Legislature or Court of Appeals provides otherwise, we are persuaded that the current statutory and regulatory framework should be interpreted as limiting compensation to Law Guardians appointed pursuant to the Law Guardian Program in a contested custody proceeding to payment by the state. (see Lips v. Lips, supra at 717, 725 N.Y.S.2d 763; see also Family Ct. Act § 248 [“The costs of law guardians … shall be payable by the state of New York”]; Matter of Lynda A.H. v. Diane T.O., 243 A.D.2d 24, 27–28, 673 N.Y.S.2d 989 , lv. denied 92 N.Y.2d 811, 680 N.Y.S.2d 457, 703 N.E.2d 269  [holding that Family Court “had no authority to compel the parties to pay the Law Guardian’s legal fees and expenses”]; Brandes, Compensation and Law Guardians, N.Y.L.J., July 28, 1998, at 3, col. 1)
- The order directing the parties to pay the Law Guardian directly must thus be reversed, and the Law Guardian can apply for a fee as provided in 22 NYCRR 835.5.
Redder v. Redder, 17 A.D.3d 10, 14–15, 792 N.Y.S.2d 201, 204–05 (2005)