Late last month the war between Mayor Rudy Giuliani and his estranged wife Donna Hanover became a battle for the children. With the couple unable to agree on custody or when to introduce Andrew, 15, and Caroline, 11, to Giuliani's friend Judy Nathan, Acting Manhattan Supreme Court Justice Judith Gische decided the two children needed their own representative. She appointed a law guardian.
Law guardians, who have existed in Family Court since 1962 and in Supreme Court since 1990, can offset the mudslinging and focus attention on the child. However, some critics say there is a vagueness surrounding law guardians in custody disputes, and believe the system of law guardianship needs reform. "The guardian is just one more powerful adult with whose judgment the child may or may not agree," said Andrew Schepard, a professor at Hofstra University School of Law.
"We are constantly debating the issue of substitution of judgment," said Bruce Carpenter, an 11-year veteran of Legal Aid's Juvenile Rights Division who specializes in delinquency cases. He said there is a general trend toward representing the wishes of the child client, but there are cases in the "gray zone" where it might be better to substitute the adult attorney's judgment. "How, as adults, do we define our role?"
In one oft-cited case (Koppenhoeffer v. Koppenhoeffer from 1990), the law guardian was defined as someone who "may act as champion of the child's best interest, as advocate for the child's preference, as investigator seeking truth in controverted issues, or may serve to recommend alternatives for the court's consideration."
New York is unique in the nation in its law guardian system, which combines two essential -- and often conflicting -- functions: guardian and attorney. A traditional guardian, who need not be an attorney, is appointed to provide the court information about a client who is viewed as legally incompetent. Children under six are typically considered to be legally incompetent. A guardian is bound to protect a child's best interests, even if it is at odds with what the child says. In contrast, an attorney for a child acts as an advocate, just as he would with an adult. An advocate must respect the client's judgment and wishes, even if he does not agree.
Legal scholars and practitioners are disturbed by the many "gray areas" of law guardianship, which they warn casts a haze over the entire field. "Identical children receive different kinds of service depending on the individual appointee's conception of the role," said Schepard, who also edits the "Family Court Review." The very ambiguity of the term law guardian, said Schepard, reflects "ambivalence about the role children should play in determining custody disputes between their parents."
The question is whether children are objects or subjects of dispute. In the Giuliani divorce case, the judge selected as law guardian for Caroline and Andrew Giuliani an attorney named Jo Ann Douglas, who had just finished serving as law guardian for the child of Revlon chief Ron Perelman and Democratic fundraiser Patricia Duff in their high-profile divorce. Douglas is known to respect the individuality and judgment of her clients. "We come to positions just like grown-ups do with their lawyers," she said. Her job is not to assume the role of the court and decide between the parents, but to look after the children when their parents are so blinded by their own problems that they cannot see their children's point of view.