A Law Guardian by Any Other Name: A Critique of the Report of the Matrimonial Commission
44 Pages Posted: 18 Jan 2008 Last revised: 11 Apr 2008
Abstract
In this article, I critique an important report, the Report of the Matrimonial Commission to the Chief Judge of the State of New York issued in 2006 by a blue-ribbon commission calling for widespread changes in the way matrimonial cases should be handled in new York courts. Among the topics covered by the Report is the call for an increased use of lawyers for children in these proceedings. I take strong issue with this recommendation. One of the principal recommendations in the Report is that children's lawyers should, to an ever greater degree, be called upon to advocate for the outcome desired by their clients. As between assigning children's lawyers who would advocate for what the lawyers perceive to be the client's best interests and who would advocate for what the child wants, I agree that it is far preferable to ask children's lawyers to advocate for what the client wants. But I go further and demonstrate, through a careful analysis of New York caselaw, that judges and courts do not want children's lawyers to advocate for what children want and expect, sometimes even require, that the children's lawyer provide the court with the lawyer's recommendation on how to decide the case. My main thesis in this article is that, although many commentators increasingly want children's lawyers to advocate for what the clients want, that is not what children's lawyers tend to do in large part because courts do not want them to. Thus, there is a sharp disconnect between the literature and theory of what children's lawyers should do and what children's lawyers are expected to do by the judges who appoint them which, in turn, affects what the children's lawyers actually do.
Keywords: children's lawyers, matrimonial proceedings
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