IN OUR JUNE column, we pointed out that the appointment of a law guardian in custody battles is often appropriate to safeguard the best interests of children because a competent law guardian may offset the adversarial character of the dispute and focus attention upon the child's best interests. We noted that appointment of a law guardian has become routine in contested custody cases, although no one has yet clearly defined the role of the law guardian in such cases. Having the opportunity to observe judges, attorneys and law guardians in court on a daily basis, it appears to us that many law guardians in custody cases are assuming the traditional role of an attorney for a party, rather than the attorney for the subject of the proceeding. One possible reason law guardians are taking on this expanded role is that many judges have been routinely directing the parties to pay the legal fees of the law guardian, set at an arbitrary, hourly rate, without affording them a hearing, at which the necessity for the services, reasonableness of the fees and the parties financial circumstances are considered.
Many judges are sua sponte directing the parties to pay a retainer to the law guardian.
Another reason for this expanded role is because the Legislature has failed to define it. For many years, the appointment of a law guardian has been mandatory in certain Family Court proceedings, such as juvenile delinquency, pins and child protective proceedings. It has been held that the Supreme Court has inherent power and authority to designate counsel to represent children in custody cases. The general rule is that the law guardian's appointment ends when the proceeding in which she was appointed is terminated. However, there are statutory exceptions to this rule.